Succession and Wills
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Succession
- Many societies have recognised the right of an
individual to acquire, hold and dispose of property. This right of disposal
includes the right to dispose properties in a manner so as to take effect after
the death of a person. Such a right can be exercised by making an instrument
known as Will, during the lifetime of a person. The manner of distribution of a
person's property after his death is then determined by his Will. Person making
a Will is known as 'testator' and distribution taking place after his as per his
Will is known as 'Testamentary' succession.
- In case of a person who dies without making a Will, the
property passes by inheritance as per the personal law of the deceased.
Devolution of property of such a person after his death is known as 'Intestate'
succession. The laws governing such intestate succession are the Indian
Succession Act, 1925 (I.S. Act) Hindu Succession Act, 1956 and Mohammedan Law.
These laws provide for the manner of devolution of such properties, amongst the
legal heirs of the deceased. They prescribe, rules as to who are the persons
entitled to receive the estate of the deceased, in what proportion and manner of
administration of the estate
- Relevance of domicile/location of a property
Domicile is relevant for movable properties while location is relevant for
immovable property. In case of an immovable property located in India, the laws
of succession prevailing in India would determine the successors of such
property. In case of movable properties, the laws governing the country of
domicile of the deceased would determine the successors of the property.
- Intestate succession as per personal laws
- Hindus/Jains/Buddhists/Sikhs
Hindu Succession Act, 1956, applies to persons following the above faiths. A
distinction is made between a male and a female for the purposes of deciding the
manner of distribution of their estates.
21 of the Special Marriage Act, 1954 provides that any person whose
marriage is solemnised under the Special Marriage Act, 1954, succession of
property of such person shall be regulated by the provisions of the I.S.
Act. However, in case of the marriage of a Hindu, Buddhist, Sikh or Jain
solemnised with another Hindu, Buddhist, Sikh or Jain under the Special
Marriage Act, such person's succession will be governed by the Hindu
Succession Act, and not by the I.S. Act.
Male : His property devolves upon his widow, children
(including heirs of a predeceased child through such child) and mother in equal
parts. In case where none of them are present, the property will pass to his
father if he is alive and failing which to his brother, sister and other
relatives.
Female : Her property devolves upon her husband and children
(including children of a predeceased child through such child) in equal parts.
In case where none of them are present, property will pass to heirs of her
husband and failing them to her mother and father. A distinction is made in such
a case between the properties received from the parents of the female and
properties received from the husband and the father-in-law. The latter property
will pass to heirs of her husband while the former will pass upon the heirs of
her father.
- Mohammedans – Property of a Mohammedan devolves on his
or her successors as per his or her personal law. However, estate of persons
married under the Special Marriage Act, 1954, shall devolve as per the
provisions of the Indian Succession
Act.
- Others – Properties of persons following any faith
other than the Hindus, Jains, Sikhs, Buddhists and Mohammedans and Parsis shall
devolve as per the provisions of the Indian Succession Act.
-
WILL
- What is it ?
- S. 2(h) of the I.S. Act defines a 'Will' as a legal
declaration of the intention of the testator with respect to his property which
he desires to be carried into effect after his death. A Will made during the
lifetime of a person becomes effective only on his death. Thus, a Will can be
revoked at any time during the life of the testator.
- The procedure governing the Wills in India is laid
down by the I.S. Act. The Act provides the procedure for making, execution and
administration of a Will. It applies to all the persons of any faith (except
Mohammedans). The following sections of the I.S. Act are not applicable to Wills
executed by Hindus/Jains/Buddhists and Sikhs.
S. 60 |
Testamentary guardian |
Ss. 65 & 66 |
Execution of privileged Wills |
S. 67 |
Effect of gift to attesting witness |
S. 69 |
Revocation of Will by testator's marriage |
S. 72 |
Revocation of privileged Will or codicil |
S. 91 |
Power of appointment executed by general bequest |
S. 92 |
Implied gift to objects of power in default of appointment |
S. 93 |
Bequests to heirs, etc. of particular person without qualifying
terms |
S. 94 |
Bequest to representatives, etc. of particular person |
S. 97 |
Effect of words describing a class added to bequest to person |
S. 99 |
Construction of terms |
S. 100 |
Words expressing relationship denote only legitimate relatives or
failing such relatives reputed legitimate |
S. 118 |
Bequest to religious or charitable uses |
- 2.1.3 Section 57 of the I.S. Act provides that sections
listed in Schedule III to the I.S. Act shall apply –
- To all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain
within the territories which at the said date were subject to the Lieutenant
Governor of Bengal or within the local limits of the ordinary original civil
jurisdiction of the High Courts of Judicature at Madras and Bombay; and
- To all such Wills and codicils made outside those territories and limits
so far as relates to immovable property situate within those territories or
limits; and
- To all Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on
or after the first day of January, 1927, to which these provisions are not
applied by clauses (a) and (b);
Provided that marriage shall not revoke any such Will or
codicil.
- Commonly used Terms
- 'Testator': A person making a Will.
- Legatee or beneficiary : A person to whom property is given under the
Will.
- Legacy : A benefit under the Will.
- Executor : A person appointed by the testator to execute the Will as per
the provisions of the Will.
- Attestation : An act of witnessing the execution of the Will.
- Administrator : A person appointed by a competent authority to
administer the estate when no executor is appointed or an executor appointed
refuses to act as an executor.
- Probate : A copy of a Will certified under the seal of a Court of
competent jurisdiction with a grant of administration to the estate.
- Codicil : A document which modifies or alters the provisions of the
original Will and forms part of it.
- Letter of Administration : A letter of the court appointing an
administrator to the estate.
- Succession Certificate : As issued by a Civil Court of competent
jurisdiction in respect of the property of a person who has died intestate,
that is without making a Will and where letter of administration or probate
is not compulsory.
- Who can make it – S. 59 of I.S. Act provides that every
person of sound mind, not being a minor, may dispose of his property by a Will.
Persons who are deaf, dumb, blind and even an insane person during his sanity
can make a Will. However, any person in an improper state of mind due to
intoxication, illness, etc. cannot make a Will where he does not know what he is
doing. Subsequent incapacity will not invalidate a Will.
- Form – Except in cases of Mohammedans, a Will has to be
in writing and oral dispositions are not recognised. However, a soldier on a war
front can make an oral Will known as a Privileged Will. No specific form is
prescribed under Indian Succession Act nor any specific language insisted upon.
It can be handwritten or typed. It can be made on a plain paper.
- Execution – A Will should be executed by the testator by
signing or putting his mark on Will in a manner so as to clarify his intent. The
act of execution by the testator should be witnessed by at least two persons
acting as attesting witnesses, who must sign or put their marks in the presence
of the testator. It is preferable that the signature is placed at the end of the
Will and every page is initialled by the testator. I.S. Act only provides that
the Will should be made by a competent person, should be in writing, executed by
testator and attested by minimum two witnesses.
- Who can be legatees – A testator can give his estate or
part thereof to any person, whether born or unborn (subject to rule against
perpetuity where ultimate legatee is preceded by a vesting in a living person),
of his choice. Estate can be given under a Will to trusts, organisations, etc.
also. An executor appointed for administration can also be a beneficiary under a
Will. A bequest to a non-existent person fails. However, where it was made in
favour of a person who is dead at the time of the death of the testator, estate
will devolve on the legal heirs of dead person.
- What can be Willed – Properties which are self-acquired
can be disposed of under a Will. Properties acquired by inheritance or gift,
etc. and held exclusively can also be subject matter of Will. It is also
possible for a member of a HUF to transfer his share in the properties of HUF
under Will. Tenancy rights not being transferable should not be made a subject
matter of Will. A Mohammedan under Will can bequeath only 1/3rd of his property,
the remaining 2/3rds part shall devolve on legal heirs as per the Mohammedan
Law. Notwithstanding this rule, a Mohammedan may bequeath his entire property
under a Will provided his legal heirs otherwise entitled to his estate consent
to such a disposition after his death – their consent before death is not valid.
- Executor/s – He is a person entrusted with the duty to
carry out instructions of the testator and has the power to collect, realise and
distribute the estate of the deceased. There is no restrictions on number of
executors but their number should be restricted to four considering the court
practice. Unless otherwise empowered an executor has to invest the realised
estate as per the provisions of Indian Trust Act and is also not entitled to any
remuneration. On refusal of the appointed person to act as an executor, the
competent court is authorised to appoint an appropriate person.
- Common Clauses – Though no form is prescribed following
clauses are commonly found in a Will.
a) |
Name, age, address, religion |
b) |
Revocation of earlier Will |
c) |
List of relatives |
d) |
Appointment of executor |
e) |
Discharge of obligations |
f) |
Legacies and bequests to persons |
g) |
Residual estate |
h) |
Testimonium |
i) |
Execution |
j) |
Witness |
k) |
Safe custody |
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- Revocation/Alteration – A Will can be revoked at any
time by the testator during his life. A Will as per S. 69 of I.S. Act is revoked
on marriage of the testator. This rule however, does not apply to a Will made by
a Hindu or a Muslim. It is possible to alter a Will by a codicil as explained
above or by correcting the original Will itself as per S. 71 of the I.S. Act
which takes effect only if alterations were executed in the same manner as a
Will was executed.
- Codicil – A Will can be changed by the testator during
his life time either by making a new Will after revoking an old Will or by
amending the old Will by separate instrument made with the intention to make
such an instrument a part of it. This new instrument is known as Codicil. S.
2(d) defines it as an instrument made in relation to a Will and explaining,
altering or adding to its dispositions which shall be deemed to form part of the
Will
- Stamp duty – No stamp duty is payable on execution of a
Will. A Will can be made on a plain paper.
- Registration – Registration of a Will is optional. If
desired it can be registered with the Sub-Registrar of Assurance's office as per
the provisions of S. 40 of the Indian Registration Act. A revocation of a
registered Will should be registered. It is preferable to register Wills made
subsequent to a registered Will. Registration grants protection and secrecy to a
Will.
- Deposit – Will can be deposited at the option of the
testator with any person of his choice including Sub-Registrar of Assurances as
per the provisions of S. 42 of Indian Registration Act.
- Probate – A probate is the grant of administration of
the estate by the court of competent jurisdiction on the basis of Will. A
probate provides the conclusive evidence (i) of the execution of a Will (ii) of
the legacies and (iii) of the legal character of legatees
by confirming validity of a Will. It can be granted only to an executor.
Obtaining a probate is not compulsory in cases of a Hindu and a Mohammedan
unless :–
The estate consists of an immovable property situated in the cities of
Mumbai, Chennai and Kolkata.
Will is executed in the cities of Mumbai and/or Chennai and/or Kolkata
and deals with an immovable property wherever located.
A maximum court fee of ₹ 75,000 is payable in the State of Maharashtra for
obtaining a probate. View taken that there is exemption in the said State where
the Will is to be administered by an executrix (a lady executor) is a grey area.
No time limit is prescribed for filing an application for probate. However,
delay is required to be explained where filed beyond a period of three years of
death.
- Letter of Administration – A letter of administration
can be obtained from the court of competent jurisdiction in cases where the
testator had failed to appoint an executor under a Will or where the executor
appointed under a Will refuses to act or where he has died before or after
proving the Will but before administration of the estate.
When the execution of a will asserted by one party is denied by the other
party, then the burden is on the party who relies on the will to prove its
execution. But when the execution of the will is not denied then no burden is
cast on the party who relies on a will to prove its execution. Balathandayutham
and Another vs. Ezilarasan [(2010) 5 SCC 770]
- Section 58 of IS Act provides that the testamentary
succession amongst the Hindus is to be governed by the general Hindu law
modified by what has been provided for in section 57 and Schedule III of the
Indian succession Act.
Comparative Chart
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Indian Succession Act |
Hindu Succession Act |
To whom applicable |
The I.S. Act, 1925, is applicable to all Indians other than Muslims.
However certain provisions apply only to non-Hindus such as Christians,
Parsis and Jews. Intestate succession to properties of any person other
than Hindu, Mohammedan, Buddhist, Sikh or Jain is governed by Part V
(i.e., Intestate Succession) Rules for Parsis are contained in sections
50 to 56 |
The Hindu Succession Act, 1956, applies to any person who is a
Hindu, Buddhist, Sikh, Jain and to any other person who is not a Muslim,
Christian, Parsi or Jew by religion. Clause (i) of section 5 provides
that the said Act does not apply to any property, succession of which is
regulated by the I.S. Act by reason of the provisions contained in
section 21 of the Special Marriage Act, 1954. Sec. 21 of the Special
Marriage Act, 1954, reads as under:
"Notwithstanding any restrictions contained in the I.S. Act, 1925,
with respect to its application to members of certain communities,
succession to the property of any person whose marriage is solemnised
under this Act and to the property of the issue of such marriage shall
be regulated by the provisions of the said Act and for the purposes of
this section that Act shall have effect as if Chapter III of Part V
(Special Rules for Parsi Intestates) had been omitted therefrom." |
Attesting witness to a Will |
In case of Wills executed by Christians, Jews and Parsis a person
named as executor in the Will can be an attesting witness. Attestation
by a legatee under the Will is a good attestation. But the bequest in
favour of such a legatee or his spouse becomes void. A gift to an
attesting witness is void though there may be a sufficient number of
attesting witnesses without him, and the undisposed portion of the
devised property will devolve according to the law of inheritance.
(Section 67 of I.S. Act) |
In case of Wills executed by Hindus, Buddhists, Sikhs and Jains, the
bequest in favour of a legatee is valid though he has attested the said
Will. So a legatee under the Will of a Hindu will not lose his legacy by
attesting the Will. |
Probate |
In the case of Wills made by Christians and Jews and by Hindus,
Buddhists, Sikhs and Jains [as provided in clauses (a) and (b) of
section 57] no right as an executor or a legatee can be established in a
Court of Justice unless Probate is granted by a Court of competent
jurisdiction u/s. 213. Wills executed outside the cities of Calcutta,
Madras and Bombay in respect of immovable properties situate outside
these cities are not subject to the condition of obtaining probate
before getting advantage of any such Will. |
No probate is required to establish right as an executor or a
legatee in case of Wills made by Hindus, Buddhists, Sikhs and Jains.
The exception to the above rule is provided in clauses (a) and (b) of
section 57 of the I.S. Act which is to the following effect:
- All Wills and codicils made by Hindus, Buddhists, Sikhs and Jains
within the territories of the Lieutenant Governor of Bengal and within
the local limits of the ordinary original civil jurisdiction of the High
Courts at Madras and Bombay have to be probated.
- All Wills and codicils made outside the territories or limits
mentioned in clause (i)above so far as relates to immovable property
situate within those territories or limits have to be probated.
|
Letter of Administration |
Where a person dies intestate who was governed by the I.S. Act, it
is obligatory for the executors or legatee to obtain a Letter of
Administration. |
Where a Hindu dies intestate it is not necessary in every case to
obtain a Letter of administration to the estate of the deceased to
establish a right to any part of the property of the deceased. |
Revocation of Will by testator's marriage |
Every Will shall be revoked on the marriage by the maker u/s. 69.
Revocation results not only from first marriage but any subsequent
marriage also. The exception to this rule is that a Will made in
exercise of a power of appointment, when the property over which the
power of appointment is exercised would not, in default of such
appointment, pass to his or her executor or administrator or to the
person entitled in case of intestacy. |
This provision does not apply to Hindus, Buddhists, Sikhs and Jains
who are governed by the Hindu Succession Act. The statement of objects
and reasons of the Hindu Wills Act, 1870 (now repealed) brings out the
reasons for a marriage amongst the Hindus, Buddhists, Sikhs or Jains not
having the effect of revoking a Will as the marriage does not create
such a change in the testator's condition as to raise a presumption that
he would not adhere to a Will made previously. This presumption is based
upon the principle of monogamous marriage (the practice of having only
one husband or wife at any one time) in England. |
Revocation of Privileged Will or Codicil |
Under section 72, a privileged Will or codicil may be revoked by the
testator by an unprivileged Will or codicil, or by any act expressing an
intention to revoke it and accompanied by such formalities as would be
sufficient to give validity to a privileged Will or by the burning,
tearing or destroying the same with the intention of revoking the same. |
Section 72 of I.S. Act is not applicable to Hindus, Buddhists, Sikhs
and Jains. |
Construction of terms/definitions and interpretation |
Section 97 of I.S. Act lays down the general principles of
interpretation of Wills. Though this section is not applicable to
Hindus, it can still be equally applied to a Will by a Hindu, if the
clear intention of the testator cannot be gathered from such Will. It
may, however, be noted that the principle of interpretation enacted by
this section, in terms, is applicable to testamentary dispositions and
not to gifts or settlement. |
Under Hindu Succession Act, 1956 following words are defined and
interpreted u/s. 3 of the Act:
- Agnate
- Aliyasantana law
- Cognate
- Custom and usage
- Full blood,
- Heir and
half blood uterine blood
- Inter state
- Marumakkattayam law
- Nambudri
- Related
law
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Bequest to religious or charitable use |
Section 118 of I.S. Act provides that no person having nephew or
niece or any nearer relation, shall have power to bequeath any property
to religious or charitable uses except the following two conditions are
satisfied:
- A Will by which the testator bequeathed his property to
religious or charitable uses was executed not less than twelve months
before the death of the testator, and
- Such Will was deposited within six months from its execution in
some place provided by law for the safe custody.
|
Section 118 of the I.S. Act is not applicable in case of Hindus,
Buddhists, Sikhs and Jains. In other words, a Will of a Hindu though not
executed before twelve months of his death and though not deposited
within six months from its execution for the safe custody, is a valid
will which is containing a bequest of his property for religious or
charitable uses. |
Words expressing relationship |
Section 100 of the I.S. Act provides that in absence of any
intimation to the contrary in a Will the word child, son or daughter
would mean legitimate child, son or daughter. The principles laid down
in this section is that a testator must be presumed to intend his
legitimate relations unless the Will itself contains an intimation to
the contrary. |
The word son, daughter or child means legitimate as well as
illegitimate child. The illegitimate son of a male Hindu of any caste is
entitled to claim maintenance from the father and in case of death of
the father from his heirs out of his estate inherited by them so long as
the illegitimate son remains a minor and does not cease to be a Hindu. |
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