Inheritance nightmares: Why unregistered Wills can spark legal battles and delay property distribution

A will is an instrument which enables the legal heirs and survivors of the deceased to inherit the properties/ assets of the deceased in accordance with his/her desire. Execution of Will helps family members to divide and distribute the property of the deceased amicably and without any dispute.

Vijay K Singh - Senior Partner at S&A Law Offices, says, "In India, a Will can be handwritten or written on plain paper even without registration. Broadly, every person who is of sound mind, and above 18 years of age can write a Will out of his own free will. It is mandatory for the Will to be attested by two or more witnesses. The unique feature of a Will is that the maker of the Will is not available for deposing about the circumstances under which it was executed."

The validity of Will is often challenged in Courts leading to delays in the distribution of the property to the beneficiaries. "It is common to have the Will probated so that the property(ies) can be transferred to the beneficiary(ies) on the basis of the probate.  A probate affirms the genuineness of the Will," said Singh.

Will is often challenged alleging fraud, fabrication, undue influence, etc. Even in the absence of the above allegations, if circumstances give rise to doubt, it becomes necessary to satisfy and remove the doubt. If the Will is registered before the concerned authorities), it gives additional evidence about its execution. In such cases, the concerned authorities can be called as a witness to affirm that as per the record maintained by the authorities, the Testator visited the office of the authorities along with witnesses and signed the Will. Therefore, it is easier to prove the execution of the Will in courts.

Normally, unregistered Will takes more time in probate proceedings. "The only available way to prove unregistered Will is to examine the witnesses with respect to mode and manner of its execution. The attesting witnesses must be trustworthy and truthful so that they satisfy judicial conscience that they saw the testator signing the Will," said Singh. The registering authorities giving evidence about the execution of will gives more credence about the genuineness of its execution.