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Business News/ Money / Calculators/  It is not necessary to register a Will for it to be valid
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It is not necessary to register a Will for it to be valid

It doesn't have to be executed before a notary public


Is a Will required to be notarized and registered to be considered valid?

—S. Shanker

A Will is a legal declaration of the intention of a person (testator) with respect to his property or estate, which he desires to take effect after his death. The following essentials of a Will must be kept in mind:

(i) The Will must be executed by the testator, i.e., the person making the Will (or by some other person in the testator’s presence and under his directions; if it is not possible for the testator to affix his signature, he may also put his thumb impression);

(ii) The signature should be placed in such as manner that it appears that it was intended to give effect to the Will;

(iii) The Will should be signed by the testator in the presence of two witnesses (other than the beneficiaries under a Will), and the witnesses must also attest (i.e., sign).

In India, registration of Wills is not compulsory. A Will is not a compulsorily registerable document under section 17 of the Registration Act, 1908, (Act), and according to section 18 (e) it is the testator’s choice as to whether he wishes to register it. There is no stamp duty payable. But if one chooses to register a Will with the applicable registrar/sub-registrar of assurances, the registration provides evidence that the proper parties had appeared before the registering officer and the latter had attested the same after ascertaining their identity. Once a Will is registered, it is placed in the safe custody of the Registrar and cannot be tampered with, destroyed, mutilated or stolen. However, non-registration of a Will does not lead to any inference against its genuineness. It doesn’t have to be executed before a notary public.

Can I appoint a close friend of mine who is a U.S. citizen and a lawyer as the executor of my Will that I wish to make in India? I am an Indian citizen.

—S. N. D’silva

The provisions governing an executor of a Will are set out in the Indian Succession Act, 1925, (Act). While the Act does not stipulate who can be named as an executor of a Will, section 223 of the Act inter alia provides that a probate cannot be granted to any person who is a minor or is of unsound mind. Therefore, an inference can be made that if an individual is being appointed as an executor, such an individual must be a major (18 years or older) and must be of sound mind. The Act does not stipulate that only an Indian citizen can be an executor. However, as per the provisions of section 211, an executor of a deceased person is the legal representative of such deceased for all purposes and all the property of the deceased person will vest in the executor.

Provisions of the foreign exchange laws prevalent in India must be kept in mind and it must be ascertained whether the person named as the executor can, under law, hold the property that is being dealt with under the Will in their name, until the same is distributed as per the Will.

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Published: 15 Jun 2015, 06:39 PM IST
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