Tuesday, April 9, 2013

Do wills need to be registered?Always read the fine printby Fali S. Nariman
FINE print often says the opposite of what is proclaimed in the headline. So it was in a recent headline that read: “Will invalid unless signed by 2 witnesses and registered: S.C.” The fine print below showed that ‘S.C.’ had said no such thing!

In its judgment of March 22, India’s Supreme Court was commenting on a writing executed by one Rao Gajraj Singh which stated that upon the death of himself or his wife the suit property (immovable property) would be inherited by the survivor of them. The Supreme Court, agreeing with the judgment of the High Court of Punjab and Haryana, said: “The writing was neither in the nature of a will nor in the nature of a transfer of property” because the writing was “neither registered as required under the provisions of the Indian Registration Act 1908 nor was attested by two witnesses as it should have done had it been a will”; therefore, the writing executed by Rao Gajraj Singh was “only a piece of paper having no legal effect”.

The headline (the larger print) had conflated two independent findings and telescoped them into one: the first finding being that the writing was not a will because it had not been attested by two witnesses; and the second and separate finding being that the writing (which was not a will) could not be said to have conveyed or transferred the suit property since the writing was not registered. There is much wisdom in the old adage: Always read the fine print!

The following is, briefly, the Indian law as to Wills:

  • A will making a disposition of movable or immovable property, or a codicil (an instrument in relation to a will and explaining or adding to its dispositions), speaks from the date of death of the person making it - he or she can revoke or alter it at any time.

  • The ingredients of a valid will are set out in the provisions of the Indian Succession Act, 1925: 

  • i) it has to be executed with due solemnity, by a person of sound mind and understanding, with the signature of the maker of the will (or “testator”) being attested by two witnesses who, in the presence of one another, and of the maker, must have seen the maker sign it --

  • The provisions are generally applicable to the Wills of Hindus, Buddhists, Sikhs, Jains, Christians and Parsis --- but do not apply to Muslims because the will of a Muslim (under Muslim Personal Law) does not require to be in writing; it can even be oral.

      ii) A valid will (i.e. one which bears the signature of the maker and is attested by two witnesses) does   not have to be compulsorily registered: Section 18 of the Indian Registration Act 1908 says that   registration of a Will is optional, even when the Will contains a bequest of immovable property.

But a non-testamentary writing or an instrument which conveys immovable property (exceeding Rs100 in value) is one that is compulsorily registrable: this is so provided in Section 17 of the Registration Act 1908.

In the past, when the maker of a will (“testator”) bequeathed property (moveable or immovable) to “religious or charitable uses”, and left behind him on his death a nephew, niece or nearer relative, then special restrictions were imposed by Section 118 of the Indian Succession Act 1925. That section provided that such a will (i.e. a testamentary writing attested by two witnesses which left property to religious or charitable uses) had to be executed not less than 12 months before the testator’s death, and had to be deposited within six months of its execution in some place provided by law for the safe custody of wills of living persons

At the express request of the Parsi community, an amendment to Section118 was introduced and passed by Parliament in December 1991 which stated: “Nothing in this Section shall apply to a Parsi”. But this amendment became a major contributory factor to Section 118 being later struck down and declared unconstitutional by the Supreme Court in 2003 because it discriminated against Indian Christians to whom the provisions of Section 118 then continued to be applicable!

There is a separate chapter in the Indian Succession Act 1925 (Chapter-VI in Part-VI) which contains provisions that guide Indian courts; on the construction (or interpretation) of wills: the primary task of the court being to ascertain the intention of the testator: which must be gathered from the language used in the document. 

 Since considerations keep changing from person to person, it is seldom profitable to compare the words of one will with those of another, or to try to discover which of the wills upon which decisions have been given in reported cases, the disputed will more closely approximates.

There are no limits to what a testator can do when making a will. As was said long ago, every testator “in disposing of his property is at liberty to adopt his own non-sense!” In one such case, a document containing only three words, “All for mother”, was admitted to probate as disposing of a very large estate, thereby revoking an earlier will which was even less concise! And the recipient was the testator’s own wife, whom he had been accustomed to describing as “mother”! The sense that courts in this country try to make of similar such “non-sense” is to be found in the rich armoury of case-law that has developed on the subject of wills.

But decided cases on wills can also be fun: illustrative of which is the late R.E. Megarry’s delightful Miscellany-at-law (Vol-I at pages 296-313 and Vol-II at pages 158-162) where the author has cherry-picked in on decisions, though only of English courts. My regret is that no one in India has attempted to reveal the lighter side of the law of wills with reference to cases decided by Indian courts!      

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