When an individual leaves property to specific beneficiaries through a Will, several critical questions naturally arise, including whether the document must be registered before the property can be transferred.
What are the other essential elements required (if any) in order to ensure that a legally sound transfer takes place? This issue attains even more significance when registration authorities ask beneficiaries to execute a release deed because the will is unregistered.
This write-up, hence, is dedicated towards these key legal aspects, sections, and associated factors in order to assist readers in ensuing better estate planning.
Is registration of a Will mandatory?
To put it simply, under Indian law, registration of a Will is not mandatory. An unregistered Will can also be legally valid, provided it has been carefully executed and attested. Not only this, but it also fulfils the applicable legal requirements. Furthermore, the registration of the Will may provide additional protection and additional evidentiary value, but the absence of registration by itself does not invalidate a Will.
Section 63 of the Indian Succession Act, 1925, establishes and lays down the requirements for the execution of an ‘unprivileged Will’. This is a normal Will that requires basic steps such as: signature or mark, witness attestation, signing in the presence of the testator, along with a host of other critical requirements.
Therefore, the law primarily focuses on the proper execution and attestation of the Will rather than making registration a condition for its validity. The idea is to ensure that the steps are diligently followed.
Furthermore, for an individual citizen, a valid Will can generally be used to bequeath, i.e., pass on self-acquired property in accordance with the testator’s wishes. Hence, a release deed is not automatically required simply because the Will is unregistered.
When is a release deed needed?
A released deed serves an entirely different purpose. It is generally executed when a person having an existing right or interest in property voluntarily gives up that interest in favour of another person. It is hence not a substitute for a valid Will.
In case a valid Will clearly bequeaths property to identified beneficiaries, they can also seek transfer of the property on the strength of the Will and other required documents. Furthermore, in case the registrar refuses to process the transfer, the beneficiaries can even seek a written explanation and obtain an opinion from a qualified lawyer. In case the refusal continues, appropriate legal remedies, including approaching the jurisdictional High Court, may also be considered.
Eventually, the key question that remains is whether the Will was validly and efficiently executed. Not only this, but is it satisfying the applicable legal requirements? Its lack of registration by itself does not necessarily make a release deed indispensable or necessary.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Succession and property matters are fact-specific and may vary depending on applicable laws and state procedures. Readers should consult a qualified legal professional before taking any legal or property-related action.
