Will made at home and unregistered. Will it be a valid Will?
Need some clarity on whether a will should be registered or not. My parents came across a newspaper article that a handwritten will would be valid. Based on this, my dad has just made a handwritten will in a normal A4 size paper and kept it home. Will this suffice and be admissible?
Will is the legal declaration of a person’s intention which he wishes to be performed after his death and once the Will is made by the testator it can only be revoke during his lifetime
There are certain characteristics which should be included in the instrument of will such as :-
• The Name of The Testator: The name of the testator should be mentioned accurately without any error in initials, spelling or grammatical mistake so that it will not affect the instrument of Will. The name of the testator can also be clarified by looking into his birth certificate or any school certificates.
• Right To Appoint Legatee: The testator is having absolute right to appoint any person as a legatee or beneficiary of a Will and legatee should execute the Will carefully and in accordance with the law.
• To Take Effect After Death: A testator who is having power to make the Will during his lifetime, but it will take effect only after his death. A gift made by a person during his lifetime and will take effect during his lifetime, cannot be considered as a Will.
• Revocability Under The Law: In general a Will made by the testator can be revoke at any time during his lifetime and testator can choose any other person as his legatee. There may be chances where a testator wishes to bring some alterations in the Will then he can make some necessary amendments in the prepared Will which is otherwise called as Codicil. A third party can not file a civil suit against the testator on the ground of cancellation of the Will. A Will made by the testator may be irrevocable in some cases where an agreement is entered into contrary to the Will, may bind the testator.
• Intention of The Testator supreme: The testator of the Will has right to revoke Will at any time which can only be proved by the intention of the testator that whether he is intending to revoke the previous testamentary instruments made by him or he can state in his Will that ‘This is my last Will’ then it can be presumed that all the earlier testamentary instruments has been revoked.
Under section 18 of the Registration Act the registration of a Will is not compulsory. Also, the SC in Narain Singh v. Kamla Devi has held that mere non-registration of the Will an inference cannot be drawn against the genuines of the Will. However it is advisable to register it as it provides strong legal evidence about the validity of the Will. Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be released only to the testator himself or, after his death, to an authorized person who produces the Death Certificate
Since a testamentary disposition always speaks from the grave of the testator, the required standard of proof is very high. The initial burden of proof is always on the person who propounds the Will.
Further if your father does not intend to register his Will, then in order to prove that the Will is indeed prepared and signed by your father, you need two people to witness the Will (ie Witnesses).
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As per law is concern it is very clear that will would be valid even if it is hand written but same should be signed by atleast 2 witnesses and should also bear the certificate of the doctor stating physical n mental fitness of person who executing it.
But i would suggest that it is always better to get either registered or notarized to avoid further complications.
Advocate Pramod KaleDistrict Court, Shivajinagar, Pune
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