The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions shared in an article in the following Q&A which was published by the Mint Newspaper on 10th February, 2021 and the online edition of the same can be found here.
I am a serving Army officer (Hindu by religion). I have made my Will under Army Order 4/91; it’s an unregistered Will. I experienced a lot of problems inheriting a property from my mother, as hers was a non-registered Will, hence I want to make a registered Will. The opening lines of any Will state that “I revoke all the past Wills”. If I write that in my registered Will, it may not be as per my department’s format. The existing Will lacks detail. What should I do?
—Name withheld on request
We understand that you have made a Will as per Army Order 4/91 that is not registered but we are not aware as to the circumstances in which such Will was made. As you are a serving Army officer, it is imperative to distinguish whether your Will would be classified as a privileged Will or an unprivileged Will (as the rules for both are distinct). Had you executed your Will while you were not actively engaged in an expedition or during actual warfare, the Will would be classified as an unprivileged Will (Section 65, Indian Succession Act, 1925), which is the type of Will executed by civilians. For the purposes of our response, we are assuming you were not engaged on an “expedition” or in “active warfare” at the time of execution of the said Will and, therefore, executed an unprivileged Will.
Testamentary succession for Hindus is governed by the Indian Succession Act. We understand that you faced issues inheriting your mother’s property vide an unregistered Will. A Will is not compulsorily registrable, and you are not legally obligated to register an unprivileged Will. While registration of a Will has certain benefits, it does not automatically prove the genuineness of the document.
We would recommend executing a fresh Will which specifically contains language revoking your existing Will(s). It should also be formally registered. This will be helpful in case of compulsory probate situation and easier for your executor(s) to deal with. Further, if the new Will is executed under normal circumstances (where you are not on an active military expedition or actual warfare), it will be an unprivileged Will, whose validity will be ultimately subject to the scrutiny of the relevant court of jurisdiction. We would also recommend that you consult the department’s legal counsel to ensure that your desired plans are in compliance with the requisite formalities.