If you choose to register your Will (which is not mandatory by law), you will have to register the physical Will in the office of the sub-registrar in whose jurisdiction you reside in. Photo: iStockphoto
If you choose to register your Will (which is not mandatory by law), you will have to register the physical Will in the office of the sub-registrar in whose jurisdiction you reside in. Photo: iStockphoto

Wills can’t be executed or registered online

The Indian Succession Act, 1925 requires that the testator (the person making the Will) executes his Will in the presence of two witnesses, and this can be done only on physical paper, not online

There is a family trust not registered under Indian Trust Act but the document is registered with the sub-registrar for the benefit of X (not minor) who is mentally challenged. There are three trustees, relatives of X, who will act to take care of beneficiary X. The trustees want to sell the trust’s property for the benefit of X. Is Dharmaday Ayukt’s permission needed to sell the property to a third party? —Name withheld

From the facts described by you, it appears that the trust is a private trust and not a public charitable trust, since it is only for the benefit of X (the beneficiary) who is not of sound mind. Therefore, the trust would be governed by the provisions of the Indian Trust Act, 1882, under which there is no registration required. However, the instant trust has been registered under the Registration Act, 1908 (since you have referred to the sub-registrar). If the trust holds immoveable property then the trust would have to mandatorily register the trust and the acquisition of the immoveable property under Section 5 of the Indian Trusts Act and the Registration Act, 1908, but such registration is optional where the trust only holds moveable property.

The question whether the trust property can be sold would depend on the provisions of the trust deed. Since the trust does not appear to be a charitable trust, you would not require the permission of the charity commissioner/Dharmaday Ayukt for such sale. The trustees can sell the properties of the trust if the trust deed includes a provision empowering them to sell the properties (immoveable or moveable) of the trust. If the deed does not include the power to sell the property, then the trustees may need to approach the court having jurisdiction in the matter to obtain appropriate orders for the sale of the property (see Section 11 of the of the Indian Trust Act, 1882).

I am 78 years old. My grandchildren tell me that these days one can write a Will online. What is the process for this? If I make a Will online, will the beneficiaries have to get a physical copy made and get it registered like a paper-based Will? —Sahil Saran

As per the India Succession Act, 1925, a Will has to be executed by the testator. The Indian Succession Act, 1925 requires that the testator (the person making the Will) executes his Will in the presence of two witnesses competent to contract and such attesting witnesses must attest (i.e. sign) the Will as attesting witnesses, in the testator’s presence and in the presence of each other, after they have seen the testator executing the Will. This requirement will have to be completed on physical paper and not online.

Separately, if you choose to register your Will (which is not mandatory by law), you will have to register the physical Will in the office of the sub-registrar in whose jurisdiction you reside in.

Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.

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