Section 18 of the Registration Act, 1908 states that registering a will is optional. Despite this, several individuals choose to register their wills. In this article, I examine whether there are any legal benefits of registering a will in the context of the following three questions: (i) Can a registered will be challenged? (ii) Does a registered will have to go through the same process of probate as an unregistered will in Bombay, Madras and Calcutta? and (iii) Does a registered will have to be proved in the same way as an unregistered will?
Can a registered will be challenged?
Yes. There are several grounds on which a will can be challenged such as forgery, fraud, undue influence, unsoundness of mind, etc. In the case of a registered will, allegations of forgery and fraud would be more difficult to prove. However, allegations of undue influence or unsoundness of mind of the testator/testatrix may be made and proved.
Does a registered will have to go through the same process of probate as an unregistered will in Bombay, Madras and Calcutta?
Yes. Registration of a will does not dispense with the requirement for probate if otherwise applicable.
Does a registered will have to be proved in the same way as an unregistered will?
Yes. Section 63 of the Indian Succession Act, 1925 requires that a will must be attested by at least two witnesses and Section 67 of the Bhartiya Sakshya Adhiniyam, 2023 (“Section 67”) requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution. It is interesting to note the proviso to Section 67.
“67. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, (16 of 1908) unless its execution by the person by whom it purports to have been executed is specifically denied.” (emphasis supplied)
What emerges from the proviso is that wills, despite being registered, have to be proved by at least one attesting witness unlike other registered documents, where the requirement for calling an attesting witness to prove execution is dispensed with.
CONCLUSION
While registering a will adds an additional layer of authenticity, it does not make the will immune from challenge. Further, the same legal rigours are applicable to proving registered wills as unregistered wills.
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