REG 078 Registration of Will and Deposit of Will — Law of Registration Notes for Judiciary

Registration of a Will and Deposit of a Will: Sections 40 and 41 Against Sections 42 to 46, and the Choice Between Proof and Privacy

The Registration Act offers a testator two quite different services, and they are regularly confused. On registration, the officer reads the will, satisfies himself that it was executed, endorses it and copies it into Book 3. On deposit, the testator hands in a sealed cover, the officer never opens it, and all that goes on the record is the superscription and a note in Book 5. The first buys evidence; the second buys privacy. Neither is compulsory, neither makes a will valid, and neither relieves the propounder of proving it after the testator's death.

The two services compared, from what the testator brings to what happens after his death

1. Registration of a Will

Sections 18(e), 27, 40 and 41, Registration Act, 1908, in substance

18(e). Any of the following documents may be registered under this Act, namely: wills.

27. A will may at any time be presented for registration or deposited in manner hereinafter provided.

40(1). The testator, or after his death any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub Registrar for registration.

40(2). The donor, or after his death the donee, of any authority to adopt, or the adoptive son, may present it for registration.

41(1). A will or an authority to adopt presented for registration by the testator or donor may be registered in the same manner as any other document.

41(2). A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if the registering officer is satisfied (a) that the will or authority was executed by the testator or donor; (b) that the testator or donor is dead; and (c) that the person presenting it is entitled to present it.

The will may be presented to any Registrar or Sub Registrar. Section 40 is an exception to the ordinary rules about place in Sections 28 to 31, which is a considerable convenience.
It may be presented at any time, by Section 27, so the four month rule in Section 23 does not apply.
It may be presented after the testator's death by the executor or a claimant, which is the commonest course in practice.
The officer reads it and copies it into Book 3, the register of wills and authorities to adopt, under Section 51(1).
Section 57(2) restricts access. Copies of entries in Book 3 are given to the testator during his lifetime, and after his death to any person applying for them.

2. Deposit of a Will

Sections 42 to 46, Registration Act, 1908, in substance

42. Deposit of wills. Any testator may, either personally or by duly authorised agent, deposit with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent, if any, and with a statement of the nature of the document.

43. Procedure on deposit of wills. On receiving such cover, the Registrar, if satisfied that the person tendering it is the testator or his agent, shall transcribe in his Register book No. 5 the superscription aforesaid, and shall note in the same book and on the said cover the year, month, day and hour of such presentation and receipt, and the names of any persons who may testify to the identity of the testator or his agent, and any legible writing on the cover. The Registrar shall then place and retain the sealed cover in his fire proof box.

44. Withdrawal of sealed cover deposited under section 42. If the testator who has deposited such cover wishes to withdraw it, he may apply, either personally or by duly authorised agent, to the Registrar who holds it in deposit; and such Registrar, if satisfied that the applicant is actually the testator or his agent, shall deliver the cover accordingly.

45. Proceedings on death of depositor. If, on the death of a testator who has deposited a sealed cover, application is made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant's presence, open the cover, and, at the applicant's expense, cause the contents thereof to be copied into his Book No. 3. When such copy has been made, the Registrar shall redeliver the original will to the applicant.

46. Saving of certain enactments and powers of Courts. Nothing hereinbefore contained shall affect the provisions of section 259 of the Indian Succession Act, 1925, or of any law for the time being in force relating to the deposit of wills, or the powers of any Court to order the production of a will.

1. The cover must be sealed and superscribed with the testator's name, that of his agent if any, and a statement of the nature of the document.

2. It may be deposited with any Registrar, not a Sub Registrar. Section 42 names the Registrar, which is a distinction worth noticing.

3. The Registrar satisfies himself of identity, transcribes the superscription into Book 5, and notes the year, month, day and hour, the persons who identified the testator, and any legible writing on the cover.

4. He does not open the cover and does not read the will. Nothing of its contents goes on any record.

5. The cover goes into the fire proof box, and stays there.

6. The testator may withdraw it at any time under Section 44, personally or by an authorised agent, and the Registrar must deliver it on being satisfied of identity.

7. On the testator's death, any applicant may apply to have it opened under Section 45. The Registrar, satisfied of the death, opens it in the applicant's presence, copies the contents into Book 3 at the applicant's expense, and redelivers the original will to him.

3. The Two Compared

	Registration	Deposit
The provisions	Sections 18(e), 27, 40 and 41	Sections 42 to 46
To whom	Any Registrar or Sub Registrar, Section 40	Any Registrar, Section 42
What the testator brings	The will itself, presented for registration	A sealed cover containing the will, superscribed with his name and that of his agent
Does the officer read it?	Yes. He copies it into Book 3	No. He transcribes the superscription into Book 5 and keeps the cover
What goes on the record	The whole will	The superscription, the date and hour, and the identifying witnesses
Privacy during the testator's lifetime	The contents are known to the office; Section 57(2) restricts copies to the testator	Complete. Nobody has seen the contents
Taking it back	The will stays registered; a later will simply supersedes it	The testator may withdraw the sealed cover at any time, Section 44
After death	A certified copy may be had by any applicant, Section 57(2)	Any person may apply; the Registrar opens the cover in his presence, copies it into Book 3, and returns the original, Section 45
What it proves	That a will in those terms existed on that date	That a sealed cover was deposited on that date; the contents are known only when opened
Cost	The registration fee	The deposit fee, and the applicant's expense of copying on opening
What neither does	Prove capacity, attestation or freedom from influence	The same, and less, since nothing was examined

4. The Choice: Proof Against Privacy

Registration suits a testator who	Deposit suits a testator who
Wants the strongest evidence that the will existed in those terms on that date	Wants nobody, including the office, to know what the will says while he lives
Is content for the office to know the contents	Fears that the contents, if known, will cause conflict in his lifetime
Expects a challenge after his death, and wants the fact of his appearance before a public officer on record	May want to change his mind, and prefers to withdraw and re deposit without any trace of the earlier terms
Wants a certified copy available if the original is lost	Is content that the will is physically safe in the Registrar's fire proof box
Has nothing to conceal from the beneficiaries	Has made dispositions that would be contentious if disclosed early

Registration is the stronger evidential course. It establishes the terms, the date, and the testator's appearance before a public officer who satisfied himself of identity.
Deposit is the stronger custodial course. The will is physically safe, and the contents are secret until death.
Deposit gives less proof, not more. When the cover is opened, what emerges is a will that nobody has examined, and the propounder must prove it from scratch.
A deposited will may of course be registered later, if the testator withdraws it under Section 44 and presents it under Section 40, or if it is presented after his death by the executor.

⚠ Neither route makes a will valid, and neither proves it

The validity of a will depends on Section 63 of the Indian Succession Act, 1925: the testator must sign or affix his mark, so placed as to show that it was intended to give effect to the writing as a will, and it must be attested by two or more witnesses, each of whom has seen him sign or received his personal acknowledgment and has signed in his presence. A will attested by one witness is void however carefully it was registered or deposited. And proof after death is governed by Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, whose proviso relieving a party of calling an attesting witness for a registered document expressly excludes wills. So the propounder of a registered will, or of a deposited one, must still call an attesting witness and must still remove any suspicious circumstances.

5. What Happens After Death

	If the will was registered	If the will was deposited
Who acts	The executor or a claimant obtains a certified copy under Section 57(2)	Any person applies to the Registrar to open the cover, Section 45
What the officer does	Issues the certified copy	Satisfies himself of the death, opens the cover in the applicant's presence, copies the contents into Book 3, and redelivers the original
Cost	The copying fee	The applicant's expense of copying
If the original is lost	The certified copy proves the contents under Section 57(5)	The original is in the Registrar's box, so the question does not arise until it is returned
Proof of the will	An attesting witness must be called; suspicious circumstances must be removed	The same
Probate	Required in the cases covered by Section 213 read with Section 57 and Schedule III of the Succession Act	The same

6. Related Provisions Worth Keeping Together

Section 51(1) makes Book 3 the register of wills and authorities to adopt, and Book 5 the register of deposits of wills.
Section 57(2) restricts copies of entries in Book 3 to the testator during his lifetime, and after his death to any applicant.
Section 62 restricts inspection of Books 3 and 4, and should be read with Section 57.
Section 85 permits the destruction of unclaimed documents after two years, and excepts wills.
Section 46 saves Section 259 of the Indian Succession Act, 1925, and any other law relating to the deposit of wills, and the power of any court to order the production of a will.
Section 17(3) requires registration of an authority to adopt not conferred by will, which is why authorities to adopt travel with wills through Sections 40 to 46 and Book 3.

7. The Position Stated Shortly

1. Registration of a will is optional under Section 18(e), and a will may be presented at any time under Section 27.

2. It may be presented to any Registrar or Sub Registrar under Section 40, by the testator or, after his death, by the executor or a claimant.

3. Where it is presented after death, Section 41(2) requires the officer to be satisfied of execution, of the testator's death, and of the presentant's entitlement.

4. A registered will is copied into Book 3, and Section 57(2) restricts copies to the testator during his lifetime.

5. Deposit is a different service under Sections 42 to 46: the testator hands a sealed cover to any Registrar, superscribed with his name and the nature of the document.

6. The Registrar transcribes the superscription into Book 5, notes the date and hour and the identifying witnesses, and places the cover in his fire proof box without opening it.

7. The testator may withdraw the cover at any time under Section 44.

8. On his death any applicant may apply under Section 45, and the Registrar opens the cover in his presence, copies the contents into Book 3, and returns the original.

9. Registration buys evidence; deposit buys privacy.

10. Neither is compulsory, neither makes a will valid, and neither relieves the propounder of proving it.

11. Validity depends on Section 63 of the Indian Succession Act, 1925, and proof on Section 67 of the Bharatiya Sakshya Adhiniyam, 2023, whose proviso excludes wills.

12. Section 46 saves Section 259 of the Succession Act and the power of any court to order production of a will.