Mumbai: With an aim to simplify the distribution of properties among family members, the Maharashtra government has allowed residents to register their wills at any of the state’s 517 government-run sub-registrar offices by paying a nominal registration fee of Rs 100.
Initiative aims to make property distribution more citizen-friendly
According to the government notification, the initiative is intended to make the process of distribution of movable and immovable properties more accessible and citizen-friendly.
Legal experts, however, have clarified that the state government’s recent push does not introduce any new legal framework relating to wills, but merely encourages citizens to utilise the already existing statutory mechanism under the Registration Act, 1908, for registration and safe deposit of wills.
Will defined under Indian Succession Act, 1925
Under Section 2(h) of the Indian Succession Act, 1925, a “Will” is defined as the legal declaration of the intention of the testator with respect to his property, which he desires to take effect after his death.
The legal framework also permits registration of wills even after the death of the testator. In such cases, the executor named in the will or any person claiming rights under it may approach the sub-registrar for registration. The registering authority is required to verify whether the will was duly executed, confirm the death of the testator, and ascertain the authority of the person presenting the document. Supporting documents such as the death certificate, affidavits, witness statements, and court orders, wherever necessary, are required to be furnished.
Advocate Aditya Pratap: Measures are facilitative, administrative
Advocate Aditya Pratap, founder of Aditya Pratap Law Offices, said the measures presently being publicised by the Maharashtra government appear to be facilitative and administrative in nature.
“Prima facie, the measures presently being publicised by the Government of Maharashtra appear to be facilitative and administrative in nature, intended to encourage utilisation of the statutory framework already contained in Sections 40 to 46 of the Registration Act, 1908, relating to the registration and deposit of wills,” he said.
Section 40 permits registration by executor after death
Pratap explained that Section 40(1) of the Registration Act permits registration of a will even after the death of the testator by allowing the executor or any person claiming under the will to present it before the registrar or sub-registrar.
He further pointed out that Section 41(2) requires the registering officer to satisfy himself that the will was duly executed, the testator is deceased, and the person presenting the will is legally entitled to do so.
Sealed will deposit allowed under Sections 42-45 for safe custody
The advocate also highlighted that the Registration Act separately provides for the deposit of wills in sealed covers. Under Sections 42 to 45, a testator may deposit a sealed will with the registrar for safe custody, which can later be opened after the testator’s death upon an appropriate application and verification process.
However, Adv Aditya cautioned that registration of a will does not automatically establish its legal validity or genuineness.
Registered will can still be challenged on fraud, coercion grounds
“The legal requirements relating to due execution and attestation under Section 63 of the Indian Succession Act, 1925, as well as proof in accordance with Section 68 of the Indian Evidence Act, 1872, would continue to apply,” he said, adding that a registered will may still be challenged on grounds such as fraud, coercion, undue influence, suspicious circumstances, or improper attestation.
He also clarified that registration of a will is distinct from probate proceedings and that in cases where probate is compulsory, registration alone would not dispense with the requirement of obtaining probate from a competent court.
Advocate Mookhtiar: Will registration always optional under Section 18
Meanwhile, Advocate Adnan Mookhtiar supported the move and noted that registration of wills has always been optional under Section 18 of the Registration Act.
“As per Section 18 of the Indian Registration Act, registration of wills is optional. However, a will can be registered and the option for registering a will was always available before,” he said.
Mookhtiar further explained that the execution and proof of wills are primarily governed by the Indian Succession Act, the Transfer of Property Act, and the Indian Evidence Act.
“The most essential ingredients are that the will has to be attested by two or more witnesses and to prove a will as duly executed, at least one attesting witness has to be called for proving execution under Section 68 of the Indian Evidence Act,” he said.
He added that several Supreme Court rulings have consistently held that mere registration of a will does not attach to it a stamp of validity and that compliance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act remains mandatory.
Mookhtiar said the government’s initiative could nevertheless encourage more citizens to register wills if the process is made more citizen-friendly, transparent, and less dependent on middlemen or agents.
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