Will can be registered after testator’s death
A Will prepared by a testator can be registered even after the death of the testator. The Section 40(1) of the Registration Act, 1908 makes it possible.
The Section states that the Will may be presented for registration by the testator or after his death, by any person claiming to be his executor or otherwise under the Will.
Under Section 41(1) of the registration act, a Will has to be registered in the same manner as any other document when presented for registration by the testator.
Therfore, if the Will is presented for registration by the testator himself the registering officer must identify the testator, satisfy himself that the testator is not a minor, an idiot or a lunatic, and the testator admits the execution of the Will, as laid down in Section 35 of the registration act.
Registration after the death of the testator
When the Will is presented for registration by any other person claiming to be its executor or a person entitled to present it, the registering officer is bound to register it, under Section 41(2) of the registration act.
While registering it, the registering officer must satisfy that the Will was executed by the testator, the testator is dead, and the person presenting the Will is entitled to present it under Section 40 of the act.
Registration of the Will after death of the testator will be done only if the registering officer is satisfied with the genuineness of the documents and witnesses.
Procedure for registering the Will after death
The Sections 84 to 90 of the Registration Rules (Kerala) 1958 provide detailed procedure for registering a Will after the death of the testator.
As per the rules, when a Will is presented for registration after the death of the testator, the registering officer shall endorse thereon the date, hour and place of presentation, the fee realised and after obtaining the signature of the presenting party and fix a date for the enquiry under Section 41(2) of the registration act.
Thereafter, he shall cause notice of the enquiry to be served on the persons to whom he considers that special notice is to be given. The notice is to be pasted in a conspicuous part of the registration office, the house in which the testator or donor lived, where interested parties may reside, and where the property of the deceased is situated. It should also be published in the government gazette.
The party approaching for registration has to bear the expenses relating to the issue of such notice including gazette publication.
If anyone, who raises any objection to the registration of the Will, desires that any witness should be summoned, then the request shall be complied with by the officer, under Chapter XII of the Registration Act. Then the witnesses have to be examined and the registering officer has to take a decision whether to register or refuse to register the Will. The decision to register or refuse to register shall be entered in the Book 2 maintained in the office.
The party seeking registration can file appeal if he is aggrieved by the refusal.
Documents required for registration
The documents normally required along with the application for registration of the Will after the death of the testator, are a copy of the Will, affidavit from the executor, affidavits from the witnesses, copy of Aadhar card of the testator, Death Certificate of the testator etc, so as to satisfy the genuineness of the Will to be registered. Such details are provided as per the rules and circulars in force in each state.
When the registering officer refuses to register
When a registering officer refuses to register a document, he shall make an order of refusal. An aggrieved person can file an appeal within 30 days, under Section 72 or 73 of the registration act to the Registrar.
If the Registrar refuses to order registration of the Will the aggrieved person can file a suit in a civil court within 30 days of the refusal, under Section 77 of the registration Act.
Registration of Will is optional
In the case of a Will, the registration of the Will is not necessary. It is the option of the person whether to register or not to register. even if it is not properly registered, it would not become invalid due to some defects in the manner of registration. Registration does not add any legal value to the Will. An unregistered Will also can be enforced if it is found to be genuine and duly executed.
However, registration of the Will make it possible for the legal heirs to get a copy of it from the registration office if the original is lost.
Additional reading
- Paragraph 9 of the judgement in Moti Ram vs Rittoo (AIR 1969 Delhi 134)
- Government of India: The Registration Act, 1908
- The Section 84 to 90 of the Registration Rules (Kerala) 1958
