Joint will - registration

This query is : Resolved 
 


Querist : Anonymous (Querist)
15 May 2021

Whether will executed by 2 persons / testator can be registered.? Sub Registrar refused to register "Joint Will". Sub Registrar said that, only will having single testator is allowed to register. What is Law of registration.?


Asgher MahdiOnline (Expert)
16 May 2021

The Sub-registrar is right. Better to go for separate Will by each person. Since, Joint Will may gives rise to series of issues,though at the moment an independent Will itself is giving much confusions and series of legal issues.

Advocate M.BhadraOnline (Expert)
16 May 2021

Joint Will is valid and it can be treated as single testament. Although in India the registration of will not compulsory but it can be registered at the discretion of testator. It should be registered by Sub-Registrar, checking the validity of the will. The sub-registrar has the discretion to register the will.

J K AgrawalOnline (Expert)
16 May 2021

There is not such law that a will, signed by two or more persons not admissible or can not be registered. suppose a property is owned by husband and wife jointly then why they both can not bequeath it jointly?

Advocate Bhartesh goyalOnline (Expert)
16 May 2021

Well adviced by expert M. Bhadra.I agree with him. In addition to it is essential condition for making joint will is that bequeathing property must be stand in individual names or in joint names and testators should have right to bequeath the properties.Property stands in single testator's name can not be bequeathed through joint will and Sub Registrar can refuse to register such will.

kavksatyanarayanaOnline (Expert)
16 May 2021

The Sub Registrar is wrong. As said by learned expert Mr. Agrawal sir, if the property is jointly owned by a husband and wife then they will execute a joint will. And it is unnecessary to the Sub Registrar whether a will jointly executed by any two persons, he shall observe whether they are in sound mind and they have power to cancel/modify/rectify by a codicil and the will shall come into operation only after the testators died. the remaining are unnecessary to the Sub Registrar. So present him the joint Will if he refuses to register it, you can appeal to the District Registrar concerned.

Pradipta Nath (Expert)
16 May 2021

The sub Registrar is at discretion to register the will does not imply him towards unreasonable or whimsical grounds. Apply for registration and ask for a formal order copy. Challenge the order copy before the Registrar.

T. Kalaiselvan, Advocate Online (Expert)
17 May 2021

Joint Will In India we have seen most families keep asset ownerships in the joint names (mostly co-owned by husband and wife). As per the law, the joint assets are owned by both individuals hence both individuals i.e. husband & wife should make a Will – either two separate Wills or one single Joint Will.
Registration of ‘Wills’: According to the Section: 18 of the ‘Registration Act, 1908’ the registration of a Will is not compulsory. Once a Will is registered, It is a strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after.
The sub registrar has no powers to reject the registration of the jointly testated Will for any reason other than observing that the testators are not of sound mind to testate the Will.
Joint will is different from the other wills because it is created and executed by two testators usually a married couple who leave all their property for each other. It means that the testator who dies first, his or her estate would be distributed to the other testator. A will cannot be revoked without the mutual consent of both the testator but when one of the testators dies it can be revoked. The concept of joint will provide that:
That when one spouse dies, the other testator will inherit everything, and
When the second spouse dies, everything directly goes to the person in whose favour will is made.
In Narayani and Anr. v. Sreedharan[1], Kerala High Court held that:

“A joint Will is a single testamentary instrument constituting or containing the Will of two or more persons based on an agreement to make a conjoint Will. Two or more persons can make a joint Will, which if properly executed by each so far as his property is concerned is as much his Will. That will come into effect on his death.”
But it is not easy to get joint will registered after the death of the testator (i.e. husband). It should be registered by Sub-Registrar, checking the validity of the will. The sub-registrar has the discretion to register the will. They have to check the validity of the will because there are instances where the registration is done fraudulently or by forgery.


P. Venu Online (Expert)
18 May 2021

Has the sub-registrar's recorded the refusal in terms of the provisions of Section 71 of the Indian Registration Act:

71. Reasons for refusal to register to be recorded ­ (1) Every Sub­-Registrar refusing to register a
document except on the ground that the property to which it relates is not situate within his
sub­district, shall make an order of refusal and record his reasons for such order in his book
No. 2 and endorse the words “registration refused” on the document; and, on application
made by any person executing or claiming under the document, shall without payment and
unnecessary delay, give him a copy of the reasons so recorded.
(2) No Registering Officer shall accept for registration a document so endorsed unless
and until, under the provisions hereinafter contained the document is directed to be
registered.

If so, what exactly is the reason recorded?

Dr J C VashistaOnline (Expert)
19 May 2021

Joint will for a joint property can be executed and registered, Sub-Registrar is wrong at this point.



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