The primary aspect of a WILL to be legally valid is 2 persons attesting witness to the will when the testator signs in their presence. When only one person has signed as witness then it is not a valid Will. Will need not be registered. A will which is not registered is valid if it is signed by two attesting witnesses...
Legal validity of a Will?
Dear Sir, My wife's uncle who was living in London, UK executed a WILL in the name of his nephews 3 people which is not registered signed by two witnesses and has been certified by the then Special Executive Officer, Govt. of Maharashtra. The WILL was made in Thane, Mumbai, Maharashtra in the year 1999. He expired about 5 years back in London. His nephews wish to sell part of the ancestral property in which he is also a joint holder. The property is in Kerala, India. His death certificate (CERTIFIED COPY) from London is available with us along with the original WILL. The Registrar office in Kerala objects its validity as it is not registered when approached for the sale deed registration. Please enlighten us in detail as to whether we can utilize this WILL for registration purposes and its legal validity. An early reply to the above is solicited. Regards, Krishnakumar Nair H/o Ushadevi Palat xxii/689, Palat House, Pazhayannur-680587. Dist. Thrissur, Kerala State India Mobile: [deleted] or [deleted] E-mail: [deleted], [deleted]
Asked 7 years ago in Property Law
Religion: Hindu
12 Answers
Registration of will is optional
2) registration of will can be done even after demise of testator
3) in alternative apply for probate of will . Enclose testator death certificate
4) probate takes 6 months time if there is no contest
This is my response to you:
1. You should apply for succession certificate;
2. Once you do obtain that then go for probate of the Will;
3. A Will does not need to be registered;
4. You will get the mutation entry done, as you have all the documents;
5. If problems persists then engage services of a lawyer when you approach the Registrar office in Kerala.
Firslty, once a will has been made, it only comes for the execution after the death of the person making will.
Secondly, though it’s been 5 years that the will has not been excuted.
Thirdly, you are advised to file a detail reason for not doing the same.
Fourthly, it is the discretion of the officer to accept the reasons or not.
Fifthly, rest I have doubt as how a person could make a will for a share in the anscestral property without proper partition of it.
Try to clarify if possible the above 4 point.
1. Ti make a Will legally valid the registration of it is not required.
2. An unregistered Will is very much valid if the same duly executed and attested by 2 witnesses.
3. However to give effect to it you need to apply for Probate of it.
4. If before grant of Probate any of the beneficiary wishes to sell it then consent of all legal heirs of the maker of the Will is required. Else injunction can be sought for.
1. A will does not require mandatory registration. Its registration is purely optional.
2. It seems that nephews have not yet mutated the property post the demise of the testator. Since the will is unregistered your nephews should file a petition for probate in the court of District Judge. Once the will is probated the property can be mutated without hassles. Thereafter, the registrar's office should not object to the execution of sale deed.
The will is valid and legal as registration is not.compulosary for will the property can be mutated in name of legal heirs and can be further sold.
If the registrar refuses to register best course is to apply for probate of the will and then on decree of court the will shall stand and sell can be executed.
Cabin should be registered and probate by the testator in the registrar office for its validity in the registration record and should be checked by the registration authority at the time of Transfer of Property .an unregistered will is generally not accepted and is always open for contest.
This is in further response to you:
1. Approach the district court for obtaining the succession certificate;
2. Your local lawyer will guide you with it;
3. Collect all the necessary documents needed to be filed to obtain succession certificate;
4. Once that is done then all the legal heirs are brought on record;
5. Also obtain Legal Heir certificate (for property only succession certificate is needed) for future use sake.
The Will can very much be utilised for purposes of sale.
It is not mandatory to register a Will in India. The Registration Act clearly mentions it. However, if the authorities insist, the Will may be presented for registration by the executor of the Will, as is also provided in the Registration Act. After the Will is registered, you may proceed with sale without any further hassles.
Dear Client,
Objection is meaningless, Registration of WILL is not compulsory. Sec 17 registration Act. Appeal against the order of registrar to DIG stamp.
WILL is valid document - testamentary succession - On the basis of WILL - valid sale.
If the registration department is taking objection to the unregistered will you may have to get the Will probated through a court competent.
Once the Will is probated then the registrar cannot open his mouth on it.
