Importance of Registration of Wills

The Importance of Registration of Wills in Indian Estate Planning

In the Indian context, estate planning is a crucial aspect of financial management, ensuring that one's assets are distributed according to their wishes after their demise. A key component of estate planning is the creation of a Will, which is a legal document that outlines how a person's assets should be distributed among their heirs and beneficiaries. 

We believe merely drafting a Will is not always sufficient. The registration of the Will is an essential step that can significantly influence its validity and enforceability.

1. Legal Validity and Enforceability

The primary reason for registering a Will in India is to enhance its legal validity and enforceability. Although an unregistered Will is legally valid, provided it meets the necessary legal requirements, a registered Will carries more weight in the eyes of the law. This is because the registration process involves scrutiny by a legal authority, typically the Sub-Registrar, who ensures that the Will is properly executed, that the testator (the person making the Will) is of sound mind, and that the Will is not made under duress or coercion. Once registered, the Will becomes a public document, and it is harder to challenge its authenticity.

2. Prevention of Tampering and Fraud

Registration acts as a safeguard against tampering and fraud. Since the registered Will is stored in the records of the Sub-Registrar's office, it cannot be easily tampered with, destroyed, or concealed by interested parties. In contrast, an unregistered Will, especially if it is kept at home or with a private individual, is more susceptible to tampering or even destruction by those who might benefit from its absence. This is particularly important in families where there might be potential disputes over inheritance.

3. Reduction of Legal Disputes

One of the significant advantages of registering a Will is the reduction in the likelihood of legal disputes among heirs and beneficiaries. In India, where joint family systems and complex inheritance laws are prevalent, the potential for disputes over property and assets is high. A registered Will, being more difficult to contest, helps in reducing the chances of such disputes. Courts are more likely to uphold a registered Will, especially if it is properly drafted, executed, and witnessed. This can save the heirs from long, drawn-out litigation, which can be emotionally and financially draining.

4. Ease of Probate Process

In the Indian legal system, probate is the judicial process by which a Will is authenticated and declared valid. For an unregistered Will, obtaining probate can be a more cumbersome and time-consuming process, as the courts may require additional proof of the Will's authenticity. However, a registered Will generally facilitates a smoother probate process. The existence of a registered Will reduces the burden of proof on the executor or beneficiaries, as the registration itself serves as a strong piece of evidence in favor of the Will’s legitimacy.

5. Accessibility and Safe Custody

Registering a Will ensures that it is kept in safe custody and can be accessed when needed. Once registered, the Will is stored securely at the Sub-Registrar’s office and can be retrieved by the executor or beneficiaries upon the testator's death. This eliminates the risk of the Will being misplaced, lost, or deliberately hidden by interested parties. Additionally, the executor and beneficiaries can easily obtain certified copies of the registered Will, which are often necessary during the probate process or when dealing with banks, financial institutions, and other entities.

6. Peace of Mind for the Testator

For the testator, registering the Will provides peace of mind. Knowing that the Will is securely stored, legally recognized, and protected against tampering, gives the testator confidence that their wishes will be honored after their demise. This is particularly important for individuals who anticipate potential disputes among heirs or have complex assets that require clear, unambiguous instructions.

Conclusion

In conclusion, while registering a Will is not mandatory in India, it is highly advisable for individuals who wish to ensure the smooth execution of their estate plans. The process of registration adds an extra layer of security and legitimacy to the Will, thereby minimizing the potential for disputes, fraud, and legal challenges. For anyone engaged in estate planning in India, the registration of their Will is a prudent step that can protect their legacy and provide peace of mind for both themselves and their heirs.

By : Apoorva Vora (Finolutions LLP)

Disclaimer : The article is written for academic purpose.  The reader must take additional legal opinion before acting upon this article in any manner.

Demystifying - Nomination and Will

“If you go through life being casual, you will end up being a casualty” – Les Brown

Indians are known for their love for Gold and Real Estate.  It is often taken for granted that after death, the same will be passed on to the loved ones.  The harsh reality of life is that life is not that simple.  Legal systems are surely not simple.  It is not only important for us, but we are duty bound to ensure that our assets or funds are transferred to our loved ones smoothly.  As mentioned earlier, this is also because the legal hassles are complex and time consuming. 

People are often confused between Nomination and Will.  It is therefore important for us to understand the basic difference between the two.

Let us start with the general mis-conception.  Most people believe that if there is a nomination in place for all the investments, there is no need for a will.  Let us understand the fact – Nomination is merely a right to receive or hold the assets or funds.  It is not a right to own. 

Typically, the purpose of appointing a nominee is to have someone trustworthy and responsible to handle assets after nominator’s death.  Nominee cannot sell the assets unless he/she is a legal heir.  In case of nominee being a minor, the nominator needs to appoint above the age of 18 who can legally receive the proceeds in the event of nominator’s death.

Will on the other hand enable the person to choose who gets the property / assets after his/her death.  Naturally, this comes into effect post the death of the owner.

Let us understand a case.

Mr. X has a life insurance policy, and had made his brother Mr. Y as the nominee for his insurance policy.  Unfortunately Mr. X died and in his will, he expressed his desire to pass on the benefit to his wife (a legal heir).  While the insurance company will pay the life cover proceeds to the nominee (Mr. Y in this case) but the nominee can only receive the funds and not use it.  Nominee cannot use the funds received as he is only the trustee of the funds and not a legal owner of the funds.   In absence of a will, the funds or assets will be distributed as per the Indian Succession laws.

Only in case of equity shares, Nomination is the final right to receive, hold and own in case of absence of a will.

Let there be no confusion – both nomination as well as Will are essential.  This is largely because:

• Nomination helps in smooth transfer of funds from certain investments, banks or financial institutions, to the nominee (of the deceased person).
• Will helps in ensuring the smooth transfer of funds / assets to the legal heir as per the wish of the deceased person.

Nominee and the beneficiary under the will can be the same person too.

The absence of the above mentioned mechanism often leads to the hassles of going through the tedious process of providing death certificates, proof of relations, probate, management of other family claims, etc.  One must think through all the possible hassles (including legal issues within the family) in absence of proper planning around such succession.

To sum up-

• Nomination as well as Will have their respective merits.
• It is always advisable to have nomination in place, particularly for financial investments.
• Irrespective of the age, one should make a Will at the earliest.  A will can be changed several times if required or desired.
• A Will should be carefully drafted to handle various scenarios arising out of multiple nominees within the family.

The position of the nominee has often been the matter of substantial litigation.  For the purpose of keeping this article conceptual, exact references of case studies and more importantly – court judgement are not referred to.

It is not a matter of IF you should have a Will.  It’s When?  The clear answer is NOW.

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