Registeration of unregistered will

501 votes

Do seek a detailed legal Consultation from a Lawyer for your issue. Prima facie Will can be registered even after the death of the testator who writes the Will. However it should be presented to the authority as soon as possible. After 6 years it would be a daunting task but chance can be taken . Do seek legal perusal of the Will to know about the validity

Advocate Anubhav Kathuria LawRato

546 votes

An unregistered Will is legally valid in India if it is properly executed per Section 63 of the Indian Succession Act. However, in your case, both attesting witnesses (wife and son) are either beneficiaries or close relatives, which can raise doubts about the genuineness. Also, since 6 years have passed, proving the execution and contents of the Will may require strong supporting evidence or court probate. Registration is not possible post death, but filing for probate in the civil court is the correct legal remedy. Feel free to consult me further for filing probate or contesting the Will if needed.

Advocate Adarsh Kumar LawRato

605 votes

Based on the details provided, your father executed an unregistered will in which the beneficiaries and attesting witnesses are his wife and his son; no independent witness was included. The will was not found until six years after your father’s demise, and you are now considering registration, concerned about the absence of neutral witnesses and the passage of time. Under Indian law, registration of a will is not mandatory for its validity. The key requirement is compliance with Section 63 of the Indian Succession Act, 1925, which mandates that the will must be signed by the testator and attested by at least two witnesses. However, for evidentiary strength, especially where wills may be contested, courts place higher scrutiny on the presence of independent, uninterested witnesses. If both witnesses are legal heirs or direct beneficiaries, the absence of a neutral attesting witness may raise questions regarding free execution and lack of undue influence, but does not by itself render the will invalid. During probate proceedings, the court will require satisfactory explanation and direct testimony from available witnesses regarding the circumstances of execution and the testator’s intent. Regarding registration, Section 40 of the Registration Act allows for registration of a will even after the death of the testator, with no specific time bar. Presenting for registration after six years is permitted, but such delay may prompt greater inquiry into the authenticity and cause for late discovery. Registration at this stage merely records the document on public record and does not certify its validity or resolve doubts about its execution; the contents and manner of execution remain subjects for judicial review if challenged. Given the absence of an independent witness and the prolonged gap between the testator’s death and discovery of the will, you should prepare to collect and present all available evidence demonstrating the testator’s testamentary capacity, voluntary intent, and genuineness of the execution. This may include contemporaneous correspondence, medical records, and any circumstantial evidence supporting the authenticity of the will. If there is a dispute, probate proceedings should be initiated and the court will assess the credibility of the attesting witnesses, even if they are beneficiaries. In summary, registration of the will is permissible and may be pursued, but it does not override or substitute the legal requirement of proving due execution. The delay in discovery and lack of independent attestation are factors that will be considered by the court during probate, but do not create an absolute bar. You should act diligently to secure all supporting evidence, ensure transparency regarding the circumstances of the will’s discovery, and be ready to respond to any objections raised during the probate process. Legal guidance from a probate expert will be helpful to navigate potential challenges and present the case effectively before the competent court.

Advocate Yuganshu Sharma LawRato