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Registration Act, 1908 | Part IX - Of the Deposit of Wills

Sections 42 and 43 of the Registration Act, 1908: Deposit of Wills and Procedure

Sections 42 and 43 of the Registration Act, 1908 provide a statutory method for placing a will in sealed custody with a Registrar. Section 42 identifies who may deposit the will and how the sealed cover must be labelled. Section 43 prescribes the Registrar's verification, recording and safekeeping duties. These provisions concern deposit and custody, which should not be confused with registration of a will.

Section 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.

A testator is a person who makes a will. A duly authorised agent is a person empowered to act for the testator in making the deposit. The sealed cover must state the testator's name, the agent's name where applicable, and that the enclosed document is a will. Section 42 specifies a Registrar, not a Sub-Registrar, as the officer receiving the sealed cover under this procedure.

Section 43: Procedure on deposit of wills

Sub-section (1). On receiving such cover, the Registrar, if satisfied that the person presenting the same for deposit 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 inscription which may be on the seal of the cover.

Sub-section (2). The Registrar shall then place and retain the sealed cover in his fire-proof box.

What the Registrar must do

  1. Verify the presenter: Be satisfied that the person presenting the cover is the testator or the testator's agent.
  2. Record the superscription: Enter the details appearing on the sealed cover in Register-book No. 5.
  3. Record receipt details: Note the year, month, day and hour of presentation and receipt on both the register and the cover.
  4. Record identifying information: Note names of persons who may establish the presenter's identity and any legible writing on the seal.
  5. Keep the cover secure: Retain the sealed cover in the prescribed fire-proof box.

Deposit of a will versus registration of a will

Deposit under sections 42 and 43 involves lodging a sealed cover for safekeeping. Registration of a will is governed separately, including by sections 40 and 41. Section 27 permits a will to be presented for registration or deposited at any time. The fact that a sealed will has been deposited does not itself establish its genuineness, due execution, testamentary capacity or validity, which may need to be proved under the applicable law.

Withdrawal and steps after the testator's death

The process does not end with deposit. Section 44 addresses withdrawal of the deposited sealed cover by the testator or duly authorised agent, while section 45 governs the procedure after the testator's death, including opening and copying the will upon a proper application and proof of death.

Practical points

  • The testator may deposit the sealed will personally or through a duly authorised agent.
  • The Registrar records the cover's particulars, rather than treating the deposit as conclusive proof of the contents.
  • Fees, identity requirements and procedural arrangements may depend on applicable State registration rules and notifications.
  • A deposited will can still raise disputes about execution, revocation, authenticity or succession.

Official statutory resources

Consult the India Code official legislation portal for the Registration Act, 1908 and the Legislative Department, Government of India for central legislative resources. Check the relevant State Registration Department for locally applicable rules, amendments and fee schedules.

Note: This article explains the central statutory framework. State amendments and rules, where applicable, should be checked before relying on the procedure in a particular jurisdiction.