Is an Unregistered Will Valid in India?

In India, the drafting of a will is an important legal exercise that ensures a person’s final wishes regarding the distribution of their estate are honoured after their demise. A common question that arises is whether an unregistered will is valid. 

This article examines the legal framework governing unregistered wills in India, the statutory requirements for their execution, landmark Supreme Court judgements on the matter, and the practical implications of relying on an unregistered document. 

We will explore these aspects under the purview of the Indian Succession Act, 1925, and the Indian Registration Act, 1908, to provide a comprehensive legal analysis of the subject.

Understanding the Concept of a Will in India

A will is a legal document that allows an individual, known as the testator, to specify the manner in which their assets and liabilities are to be distributed upon death. In the Indian legal context, the primary legislation that governs the execution and validity of wills is the Indian Succession Act, 1925. 

This Act outlines the essential requirements for a valid will, and importantly, it does not mandate the registration of a will. Consequently, an unregistered will remains a legally recognised document provided that it meets the criteria set out under the Act.

The Indian Registration Act, 1908, on the other hand, deals with the registration of documents. However, the Act makes a clear exemption for wills, meaning that while registration can serve as a useful tool to prevent disputes and ensure the document’s safekeeping, it is not compulsory for a will to be legally effective. The choice between registering and not registering a will is often a matter of convenience and risk management for the testator.

Legal Requirements for the Execution of a Will

The validity of a will, whether registered or unregistered, hinges on its proper execution. Under Section 63 of the Indian Succession Act, 1925, the following requirements must be satisfied for any will to be deemed effective:

Written Document

The will must be in writing. This is a fundamental requirement, as oral declarations or testamentary statements made verbally do not carry the same legal weight.

Testator’s Signature or Mark

The testator must either sign the will or affix their mark on it. In cases where the testator is unable to sign due to physical constraints, the will can be signed on their behalf, provided it is done in their presence and at their explicit instruction.

Attestation by Witnesses

The will must be signed by at least two witnesses. Each witness is required to observe the testator signing or affixing their mark on the will. After witnessing the act, the witnesses must sign the will in the presence of the testator or after receiving a personal acknowledgement from them. This process is crucial as it provides verifiable evidence of the testator’s intention and the document’s authenticity.

No Specific Attestation Formality

There is no strict requirement for a specific type of attestation beyond the presence of the witnesses. However, the procedure must be executed in a manner that clearly evidences the testator’s intent and compliance with the statutory conditions.

It is important to note that these execution requirements apply irrespective of whether the will is subsequently registered or remains unregistered. The legal validity of an unregistered will, therefore, depends largely on the strict adherence to these execution norms.

Conclusion

The legal landscape in India is clear: an unregistered will, if duly executed in accordance with the Indian Succession Act, 1925, is valid and enforceable. The landmark judgements delivered by the Supreme Court in cases such as Saroja v. Santhil Kumar (2010) and Surinder Pal Sharma v. Surjit Kaur (2019) have reinforced this position by emphasising that the essence of a will’s validity lies in its proper execution rather than in its registration status.

However, while the law recognises unregistered wills as valid, practical challenges persist. The process of proving an unregistered will’s authenticity during probate can be arduous and fraught with potential disputes. As such, many legal experts advise the registration of a will as a precautionary measure. Registered wills offer greater security, ease of proof, and a reduced likelihood of contentious litigation.