Registered Will vs Unregistered Will

In India, drafting a will is a critical legal instrument through which an individual—the testator—can ensure that their estate is distributed according to their wishes after their death. The choice between a registered will and an unregistered will is one that many testators face. While the law recognises both types as valid, there are significant differences in terms of execution, security, and ease of administration. 

This article provides a comprehensive comparison between registered and unregistered wills, exploring their legal frameworks, practical advantages and disadvantages, and the implications each option holds during the probate process.

Laws on Registered Will and Unregistered Will

The Indian Succession Act, 1925

The Indian Succession Act, 1925, lays down the essential requirements for the execution of any will, irrespective of its registration status. According to Section 63 of the Act, a will must be:

• In writing,
• Signed or marked by the testator (or by another person in their presence and under their direction),
• Attested by at least two witnesses who observe the testator signing or affixing their mark on the document.

These requirements ensure that the testator’s intention is clearly documented and verifiable. Notably, the Act does not mandate that a will must be registered to be considered valid.

The Indian Registration Act, 1908

While the Indian Registration Act, 1908, provides for the registration of documents, it expressly exempts wills from compulsory registration. Sections 23 and 27 of the Act clarify that there is no statutory obligation to register a will, thus allowing testators the freedom to decide based on their individual needs and circumstances. However, the benefits of registering a will are well recognised in terms of security and ease of proof during the probate process.

Understanding the Two Approaches

Unregistered Will

An unregistered will is a document that, although executed in accordance with the legal formalities prescribed by the Indian Succession Act, has not been formally registered with the Sub-Registrar’s office. The absence of registration does not detract from its legal validity. Landmark judgements by the Supreme Court, such as those in Saroja v. Santhil Kumar (2010) and Surinder Pal Sharma v. Surjit Kaur (2019), have confirmed that an unregistered will is enforceable, provided that it has been duly executed and that evidence of its execution can be presented during probate.

Registered Will

A registered will, on the other hand, is one that has been submitted and recorded with the appropriate registration authority—typically the Sub-Registrar. Registration involves additional administrative steps and often requires the payment of a fee. The process not only helps in maintaining an official record of the will but also ensures that the document is stored securely, thereby reducing the risk of tampering, loss, or damage.

Key Differences Between Registered Will and Unregistered Will

Below is a comparative table summarising the key differences between registered and unregistered wills in India:

Proof of Execution

• Unregistered Will: The validity of an unregistered will depends largely on the evidence of its execution. In the event of a dispute, the court relies on the testimony of witnesses to establish that the will was signed in accordance with legal requirements. This process can be time-consuming and may lead to prolonged litigation if the authenticity of the will is questioned.
• Registered Will: Registration provides a degree of prima facie evidence regarding the document’s execution. Since the will is recorded with the Sub-Registrar, its authenticity is more readily accepted by the court. This can significantly simplify the probate process and reduce the likelihood of disputes among beneficiaries.

Security and Safeguarding

• Unregistered Will: While an unregistered will is legally valid, its storage and preservation become a concern. Without a formal registration, the document might be kept in private custody, such as in a safe deposit locker or with a legal practitioner. However, the risk of loss, damage, or tampering remains, especially if proper care is not taken.
• Registered Will: A registered will benefits from the security provided by the official custody of the Sub-Registrar’s office. Documents held in government custody are less prone to being tampered with or misplaced. Furthermore, registration helps in ensuring that the will remains intact and accessible when required, particularly during the probate process.

Cost and Convenience

• Unregistered Will: One of the primary advantages of an unregistered will is its cost-effectiveness. Since there is no need to pay registration fees or incur additional administrative expenses, drafting an unregistered will can be simpler and less expensive. This is particularly appealing for individuals with modest estates or those seeking a more straightforward approach.
• Registered Will: Registration involves nominal fees and the administrative hassle of visiting the Sub-Registrar’s office. For some, this might seem like an unnecessary expense, particularly if the will is uncomplicated and there is confidence in its secure storage. However, the long-term benefits—especially in terms of reduced litigation risk—often outweigh the initial costs.

Flexibility and Revocability

• Unregistered Will: Unregistered wills offer a higher degree of flexibility. They can be easily amended or revoked by the testator, as there is no need to navigate the formalities of a registration system. This flexibility can be particularly useful if the testator’s circumstances change or if they wish to update their testamentary intentions without incurring further administrative procedures.
• Registered Will: While registered wills are legally sound, the process of making amendments can be slightly more cumbersome. Changes to a registered will may require re-registration or additional formal procedures to ensure that the amendments are recorded officially. Nonetheless, many legal experts argue that the extra steps involved in updating a registered will are a reasonable trade-off for the enhanced security and reduced risk of disputes.

Enforceability and Probate Process

• Unregistered Will: During the probate process, the onus is on the executor or legal heir to prove that an unregistered will has been properly executed. This often involves calling on the attesting witnesses to testify about the signing of the will. In cases where the evidence is contested or where the witnesses are unavailable, the process can become lengthy and complicated, potentially delaying the distribution of the estate.
• Registered Will: A registered will generally faces fewer hurdles during probate. The registration record serves as a reliable piece of evidence that the will was executed according to legal requirements. This not only speeds up the probate process but also reduces the possibility of disputes among beneficiaries. Courts are more likely to accept a registered will as authentic, thereby ensuring a smoother transition of assets.

Potential for Disputes

• Unregistered Will: Given the reliance on witness testimony and circumstantial evidence, unregistered wills are inherently more vulnerable to challenges. Beneficiaries or other interested parties may contest the authenticity of the will, leading to litigation that can be both time-consuming and expensive. The lack of an official record exacerbates these challenges, particularly in contentious family scenarios.
• Registered Will: Registration mitigates many of these issues by providing a clear, government-verified record of the testator’s wishes. Although disputes can still arise, the presence of an official registration significantly strengthens the executor’s position in court. This official backing makes it harder for disputing parties to undermine the will’s validity.

Judicial Precedents and Interpretations

The judiciary has consistently maintained that the validity of a will is determined by its proper execution rather than its registration status. Supreme Court rulings, such as those in Saroja v. Santhil Kumar (2010) and Surinder Pal Sharma v. Surjit Kaur (2019), have affirmed that unregistered wills are enforceable if they meet the criteria set out in the Indian Succession Act, 1925. Nonetheless, these judgements also highlight the practical difficulties in proving an unregistered will’s authenticity during probate. As such, while the legal system does not mandate registration, the benefits of having a registered will are clear in terms of reducing litigation and expediting the probate process.

Conclusion

Both registered and unregistered wills have their distinct advantages and drawbacks. Legally, an unregistered will is as valid as a registered one provided it is executed in accordance with the Indian Succession Act, 1925. However, the practical benefits of registering a will—such as enhanced security, easier probate processes, and reduced potential for disputes—make it a preferred option for many.