It is not compulsory to register Will even if it includes immovable property
You can register your Will with the applicable registrar or sub-registrar of assurances
What are the costs and procedures for Will registration?
Registration of a Will is not compulsory even if it comprises of immovable property. But if you want to do so, you may register your Will with the applicable registrar or sub-registrar of assurances (where you reside). The procedure for depositing a Will with the registrar is in Sections 42 to 45 of the Registration Act, 1908.
To register a Will, the testator (person making the Will) may, either personally or by an authorised agent, deposit the Will with the registrar in a sealed cover superscribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document. On receiving the cover, the registrar, if satisfied that the person is the testator or his agent, shall transcribe in his register the superscription aforesaid, along with the year, month, day and hour of presentation and receipt, and the names of any persons who may testify to the testator’s or his agent’s identity.
A Will doesn’t attract stamp duty. A nominal fee is payable for registration, which may differ from state to state. In Maharashtra, for example, the fee is approximately Rs100.
Certain states may, for administrative purposes, require additional documents like passport photographs of the testator or witnesses and a medical certificate certifying that the testator is mentally fit.
Can I allocate the money from life insurance policies in case of premature death, in my Will?
I have assumed that you are Hindu and are governed by Hindu personal law.
As per Section 30 of the Hindu Succession Act, 1956, a Hindu may dispose of by Will or other testamentary disposition, any property which is capable of being disposed of by him or her, according to the provisions of the Indian Succession Act, 1925 or any other law for the time being in force applicable to Hindus. There is no restriction under the Hindu Succession Act, 1956 or under the Indian Succession Act, 1925 on the persons to whom a Hindu may bequeath his properties over which he has full disposing power.
You can bequeath your assets in favour of a particular person/s, including money that may accrue from life insurance policies. But if you have made a nomination under your policy in favour of your parents, or your spouse, or your children, or any of them, sub-section (7) of Section 39 of the Insurance Act, 1938 provides that such nominee or nominees shall be beneficially entitled to the amount payable.
Accordingly, particularly for life policies, nomination with the insurer reflects your intention on how the money will devolve on your demise (and that your Will contains similar provisions).
We have two houses. One is co-owned by me and my son, and the other by me and my wife. I wish my share to first pass on to my wife, and to my son after her demise. We want a similar arrangement for my wife as well—her share to me and then to my son. How should we arrange this?
—Hemant K. Pant
I have assumed that both you and your wife are governed by Hindu laws of succession and are governed by Hindu personal law.
I have assumed that you own each of the houses (with your son and your wife respectively), as a tenant-in-common (i.e., on your demise, your half share would devolve upon your legal heirs, in accordance with the rules relating to intestate succession under Hindu Law or as per the provisions of the Will so executed by you).
If you want that upon your demise, your share in both houses devolves upon your wife for life, then you should execute a Will (in accordance with the provisions of the Indian Succession Act, 1925), and bequeath a life -interest in your half share in the two houses in favour of your wife and upon her death to your son (who would be the ultimate beneficiary) absolutely. Thus, your wife would be entitled to enjoy your rights in the house during her lifetime but upon her demise your share in the houses would devolve upon your son (without your wife having to execute a Will in respect of this). However, with regard to her share in the house which she co-owns with you, she would have to execute a Will where she gives you a life interest in her half share in the house (co-owned with you) upon her demise. Further, her Will shall provide that upon your demise, the half share in which you have a life interest, will vest absolutely in your son, as ultimate beneficiary.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.
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