It is of common knowledge that a “Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. We are often posed with various questions by our Clients, especially the Non-Resident Clients whose old age parents still live in India, pertaining to the mode and manner of execution as well as the validity of a Will so executed and/ or to be executed, such as ‘We have got a Will which was made at home and is unregistered, will it be a valid document?’ ‘What is the status of an unregistered Will post the death of the testator?’, ‘Is there any legal requirement to get the Will registered?’, ‘Is there a time frame within which a Will need to presented before the Sub-Registrar?’, ‘Is unregistered Will a valid proof of ownership for its beneficiary?’ etc.
To answer above question or rather the answer to all the above queries lies in simple understanding of the laws of succession in India coupled with the laws that govern the registration of a document here in India.
As we all know that a Will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. However, the vital aspect which has not been told to us is that a Will is not a transfer inter vivos i.e., ‘while alive’ or ‘between the living’. Thus, the two essential characteristics of a Will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator.
We very often frankly suggest to our Clients that so long as the testator is alive, a Will is not be worth the paper on which it is written for the simple reason that the testator can at any time revoke it. Further, if the testator, who is not married, marries after making the Will, by operation of the law, the Will stands revoked. Similarly, registration of a Will has nothing to do with its effectiveness and registration does not make it more effective.
THE EXECUTION OF A WILL
Let us read the law on the subject, which is the Section 63 in the Indian Succession Act, 1925, which provides for the execution of unprivileged Wills:-
‘Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:—
- The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
- The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
- The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.’
A careful analysis of Section 63 reveals that in order to say a Will has been duly executed, the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with. These requirements are as under:
- the testator has to sign or affix his mark to the Will, or it has got to be signed by some other person in his presence and by his direction;
- that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will, and;
- the most important point is that the Will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witness has to sign the Will in the presence of the testator.[1]
Section 63 of the Indian Succession Act, 1925 also lays down certain rules with (C) of Section 63 provides that the Will shall be ‘attested’ by two or more witnesses each one of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature of mark of the such other person; and each of the witnesses should sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.
It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory.
The flip side, as per Section 63 in the Indian Succession Act, 1925 can there be valid ‘execution’ of a document, which under the law is required to be ‘attested’, without the proof of its due attestation? And if due attestation is also not proved, will the fact of execution of no avail?
It can easily be said that the role of the attesting witness and witness seeing attestation is very vital in order to successfully address the questions leading to the valid execution of a Will. Therefore, the above requirement i.e., the ‘Proof of execution of document required by law to be attested’ is critical aspect which goes to the root of the question of very validity of the execution of Will. This being so as:
- in terms of Section 68 in the Indian Evidence Act, 1872 if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence, and
- in terms of Section 71 in the Indian Evidence Act, 1872, if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
A reading of Section 68 will show that “attestation” and “execution” are two different acts one following the other. Whereas, on a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act.
It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of the proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act.
THE REGISTRATION OF A WILL
Once a Will is duly executed, after being neatly written on a plain piece of paper either by hand or typed, the common situation faced is should it also be duly registered? Should it be made on stamp paper, if yes, how to decide the value? And most importantly how soon the registration should be done?
Let us first understand that the word ‘registration’ means the process of recording the particulars of a document into the book provided to every registering officer by the State Government. The process of ‘registration of documents’, ‘time of presentation’, ‘place of registration’, ‘effect of registration and non-registration’, etc. have been governed by various enactments consolidated in the Registration Act, 1908.
Registration Act provides the classes and categories of documents registration of which is compulsory and documents of which registration is optional. Insofar as a Will is concerned in terms of Section 17(h) of the Registration Act a Will is one such document registration whereof is not compulsory and its registration is optional. Why is so? The answer is quite simple, a Will is a testamentary instrument which is executed with sole intent that it could only be used upon the death of the executor therefore the executor may or may not get it registered.
The only benefit which registration attracts is that registration provided cogent evidence that proper parties had appeared before the registering authority i.e., the Registrar or Sub-Registrar, and attestation has taken place after ascertainment of the identity of the attesting witnesses therefore its genuineness cannot be doubted. Further benefit is, once a Will is registered, it is kept in safe custody of the Registrar and therefore it cannot be tempered with, destroyed, mutilated or stolen.
One more thing which needs to be kept in mind is that registrations of a Will is quite different and must not be misunderstood with that of notorisation. Though, notorisation is commonly followed as a process to assure that a document is authentic and cane be trusted. However, the main purpose of notorisation is to ensure the signatures on it are genuine and the signers have acted without duress or intimidation. A will does not require notorisation or any stamp duty.
Also, the time frame for getting any document registered, much less a Will, is four month which means you need to get your Will registered within four months from the date of its due execution. The period of for months under certain circumstances, with certain penalty, can further be extended to another four months bit not beyond.
[1] [Appeal (Civil) No.11194 of 1995, Janki Narayan Bhoir Vs. Narayan Namdeo Kadam]