Hamlet and His Will

To register or not to register that is a question

Moneylife has been conducting sessions on how to draft a Will. The three sessions were not only well attended but the interactions were simply wonderful. If truth be told, we learnt more from the sessions than maybe some of the attendees did!

One point cropped up at all the sessions. Should a Will be registered or not? To reinforce our thinking, we did some research and are pleased to learn that our observations and conclusions were correct. Those who attended the sessions will remember our discussions and those who did not will learn something new.

You be the judge.

A person executes a Will. It is complete in all respects. Executors are named with addresses, age and occupation. The beneficiaries are properly identified and the assets clearly defined.. The Will is attested by two witnesses with their proper names, addresses, etc. In short, there are no shortcomings. It is a perfect document.

The Will is registered with the sub-registrar of assurances or whatever the local authority is. It is then deposited. However, it must be mentioned here that the law does not make it mandatory for a Will to be registered.

So far so good. The legatees, if in the know of the contents of the Will, sleep well.

Comes a day when the testator, the person who had executed the Will, decides that the ‘perfect Will’ needs a change. There are two options available. One is to execute a codicil, that is, an amendment to the original Will. The other is to go in for a completely new Will. In either case, the original Will is now no longer pristine.

The question that haunts everybody is now upon us. Should the codicil or the new Will be also registered?

Before reading further, what do you think should be the answer?

You be the judge, if the new Will or the codicil is NOT registered. Which Will takes precedence? The first or the second?

Fortunately, the courts have taken a decision on this issue; in a case decided by the Madras High Court, in 1996. The answer is: The second unregistered one, if carefully executed with witnesses, executors, assets and beneficiaries well-defined. It matters not if the second Will is not registered. The codicil, or the second Will, is the testator’s LAST wish and must take precedence over all other testamentary documents.

Why? One may ask. For one, registration is not compulsory. And what is not mandated by law is optional. Registration is, therefore, no more than a panacea. It is simply not necessary. It affords a safe deposit place for the Will, nothing else. It confers no further legal sanctity, no stamp of non-violation.

Secondly, one must consider the reasons why the registration of a Will is not compulsory.

Those in cities have access to certain facilities; others do not. A Will may be executed on a weekend when it may be impossible to get to the registrar. The executor may not be in a condition to visit the place of registration, for whatever reason. Some may want to keep the Will a secret and simply ask their lawyer to keep it in safe custody. After all, not even the witnesses are supposed to read the Will, only sign.

So, if someone asks you to ‘Register’ a Will, ask the question: ‘Why?’ It could save you a lot of money and hassles. But if you do register it, do not worry. No harm will come to you. You will be way, way gone.

And, if you have left a second unregistered testamentary document behind, even a one line codicil, you can watch the legal Mahabharata from far above!

(Editor’s note: Like the Aadhaar, the registration of Wills is being mandated through the backdoor. Some municipal corporations are allegedly insisting on registration. Some registrar & transfer agents also give preference to registered Wills.)

Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to bapoomalcolm@gmail.com or mail@moneylife.in

Courtesy By: Moneylife