Validity of unregisterred will

sowmyakam (Querist) 11 October 2015 This query is : Resolved
Hi,

I would like to know the validity of a will which is created by my mother in the name of my brother (India citizen) and myself (NRI) for self earned property (small house, a bank a/c and deposit).

The will is signed on a Rs100/- stamp paper purchased during 2008, but the will was created and signed on 2013, remains unregistered to date, with the no witness sign on the will. Based on this information would like to clarify a few things.

Does this stamp paper purchased during 2008 hold good for writing a will which was signed during 2013 ?
Does the will require witness signatures to be valid ?
Does the will required to be registered or taken to notary to be valid ?
Would my mother require to create a new will ?
Can my uncles or relatives or neighbours who are not listed as beneficiaries sign as witnesses on the will dating 2013 ?
How much would it cost for getting a new will done and getting it registered, if this would not serve the purpose ?

edit1: (updated based on some of the responses.)
Is it best for her to create a will or gift deed in the name of both the children ?
Can a gift deed be created on a stamp paper of Rs100/- ?
What are the tax implications (or stamp duty) in both the cases (gift deed or will) in case of demise of the testator of the will ? Which is more recommended ?
Will the beneficiaries (myself NRI and brother Indian citizen) require to pay stamp duty or taxes during the time of transferring the property after the demise of the testator of the will ?

I would greatly appreciated any advice, suggestions and responses, many thanks in advance.

Thanks,
Sowmya K

Follow Query

Report Abuse

Kishor Mehta (Expert) 11 October 2015
Sir,

Replies to your queries are:

[1a] Does this stamp paper purchased during 2008 hold good for writing a will which was signed during 2013 ?

No, the stamp paper becomes invalid if not used within four months of purchase, hence the Will is not valid.

[2] Does the will require witness signatures to be valid ?

Two witnesses are necessary.

[3] Does the will required to be registered or taken to notary to be valid?

The Will need not be prepared on a stamp paper, need not be registered or notarized, it can be written on an ordinary paper, it should bear the signature of the testator on each page.

[4] Would my mother require to create a new will ?

It is advisable to prepare a fresh Will, it should be clearly dated and stating therein that all the previous Wills are cancelled.

[5] Can my uncles or relatives or neighbours who are not listed as beneficiaries sign as witnesses on the will dating 2013 ?

Any adult sane person can be a witness to a Will, provided he is not a beneficiary under the Will or nothing is bequeathed to him/her by way of a legacy in the Will.

How much would it cost for getting a new will done and getting it registered, if this would not serve the purpose ?

The Will can be prepared on a sheet of paper, duly signed by the testator at each page and duly witnessed by two witnesses. It is not necessary to register a Will.

Good Luck,
Kishor Mehta

alexander (Expert) 12 October 2015
Ld colleague Mehta has advised you well , even then to make sure that you understand the basic requirements I am repeating them below
(a) No stamp paper or nny special paper is required for writing a Will
(b) The testator ( person who is writing the Will) to rule out any ambiguity in the very first paragraph state:

(i) That In suppression of all my previous Wills and testamentss, this is my Last Will and testament

(ii) I am in good health and possessed of a disposing mind,

(iii) I am writing this Will without any pressure or influence of any kind whatsoever

If a person can write in his own handwriting it would help in case it is contested by other parties later . ,. Such a handwritten Will is called a HOLISTIC WILL

There should be at least TWO INDEPENDENT WITNESSES

THIS IS IMPORTANT:

THE TESTATOR AND THE TWO WITNESSES MUST SIGN IN PRESENCE OF EACH OTHER, THAT IS TO SAY ALL THE TWO PERSONS MUST STATE THE FACT THAT THEY HAVE SIGNED IN PRESENCE OF THE TESTATOR AND THE TESTATOR TOO MUST STATE HAS SIGNED IN PRESENCE OT THE TWO WITNESSES.

TO OBVIATE ANY POSSIBLE OBJECTION LATER THEY ( ALL THE THREE) MAY SIGN ON EVERY PAGE .

And the Witnesses must be perceptably aware that they are witnessing a WILL . For this reason you may title the WILL in Block /bold and underlined Letters the Title of the Will e.g

THE LAST WILL AND TESTAMENT OF SHRI/SHRIMATI XYZ AGED ---- years R/O

The age factor may be mentioned in the text of the Will

The Testator may also appoint a LEGATEE / Exeecutor of the Will

Numerous cotestants spring up after the person's death and create avoidable legal impediments. FOR THIS IT IS ESSENTIAL TO GET IT REGISTERED. ALTHOUGH GENERALLY A WILL MAY NOT BE REGISTERED. IT IS IN YOUR OWN INTEREST TO GET IT DONE. FOR THIS PURPOSE YOU MAY CONTACT THE local REGISTRAR's Office.

Normally you would be required to submit two photo copies of the Will along with the Original and you must take two Witnesses with you to attest the registration of the Will at the registrar's office. They may not be the same persons who attested the Will with the Testator. You would be required to pay just the Nominal Registeration Fee for which The Registrar's Office shall issue a receipt.No other amount is required to paid to anyone further

Once the Will is registered you would be reasonably safe. IN DELHI NO PROBATE OF a Will is required

sowmyakam (Querist) 12 October 2015
Dear Kishore and Alexander, Thanks I greatly appreciate the advise provided on the matter. Could you please clarify the following:

Is it best for her to create a will or gift deed in the name of both the children ?
Can a gift deed be created on a stamp paper of Rs100/- ?
What are the tax implications (or stamp duty) in both the cases (gift deed or will) in case of demise of the testator of the will ? Which is more recommended ?
Will the beneficiaries require to pay taxes while executing the will after the demise of the testator of the will ?

Thanks,
Somya K

Rajendra K Goyal (Expert) 12 October 2015
Stamp duty on gifts differ from state to state, For your state confirm the rate from registrar office. Gift deed should be registered. Notarized gift deed is invalid.

Will or gift both have their own merits and demerits?

You have to work out which is more suitable in the present case.

Anirudh (Expert) 12 October 2015
1. There is no requirement that a WILL is to be written on any Stamp paper. It is enough if the WILL is written even on a plain paper.

2. If the WILL is written on a stamp paper, then it has to be ensured that (i) the name of the purchaser of the Stamp paper (that is the person who is making the WILL) is clearly written on the backside of the stamp paper; (ii) the purpose for which the Stamp paper has been purchased (WILL) is clearly written on the back side of the stamp paper and (iii) the date of purchase of the stamp paper is not later than the date on which the WILL was made. [If it is an e-stamp paper, the aforesaid details will be there on the first page itself].

3. If every point at 2 above are satisfied, then AND ONLY THEN, you can get the same signed by your uncles or relatives or neighbours who are not listed as beneficiaries, and who are young enough to survive, so that in case of need they are available to give evidence before the Court of law.

IF POINT No. 2 is not satisfied then I suggest the following:

4. There is no requirement that a WILL is to be registered. BUT, a registered will stands on a better footing (in case of any challenge to the genuineness of the WILL) than an unregistered WILL. Therefore, it is advisable (though not compulsory) to get the WILL Registered.

5. A WILL without the signature of the Attesting Witness is of no value. Since you say that the present WILL does not bear the signature of Witnesses, it will not be valid.

6. As you say that the WILL has not been signed by Witnesses, and since your mother is alive, it will be advisable to get a Fresh WILL properly drafted (with the assistance of a Lawyer - to avoid any difficulty in future in the interpretation of the actual meaning and the purpose intended by the person creating the WILL), and signed by your uncles or relatives or neighbours who are not listed as beneficiaries, and who are young enough, so that in case of need they are available to give evidence before the Court of law.

7. Registered WILL is much cheaper as it does not involve any Stamp Duty at all, compared to GIFT Deed where stamp duty is payable.

sowmyakam (Querist) 12 October 2015
Mr Anirudh,

Also will the beneficiaries (myself NRI and brother Indian citizen) require to pay stamp duty or taxes during the time of transferring the property after the demise of the testator of the will ?

Anirudh (Expert) 12 October 2015
No. There will not be no stamp duty impact when the WILL would be given effect to.

Guest (Expert) 12 October 2015
Unless proved false, forged or got written forcibly, a will is a will and valid document also, irrespective of whether signed on a stamp paper or on a plain paper or is registered or not. Even if signed on an expired stamp paper that does not make any difference, as the same can be treated as will on an ordinary piece of paper.

sowmyakam (Querist) 14 October 2015
Firstly thanks to all the members, kind enough to give provide valuable advice.

Please let me know if my name mentioned (as beneficiary) in the will should be the before marriage name or after marriage name (my husbands name has replaced the family name) ? Which would be more appropriate ?

regards,
Sowmya K

Validity of unregisterred will

Similar Resolved Queries :