Succession and Wills

1. Succession

1.1 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.

1.2 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 inte ralia the Indian Succession Act, 1925 (I.S. Act), Hindu Succession Act, 1956, Parsi Marriage and Divorce Act, 1936 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

1.3 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.

1.4 Intestate succession as per personal laws

1.4.1 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.

S. 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, 1956 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.

1.4.2 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.

1.4.3 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.

2. WILL

2.1 What is it ?

2.1.1 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.

2.1.2 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.

2.1.3 Section 57 of the I.S. Act provides that sections listed in Schedule III to the I.S. Act shall apply –

1. 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
2. 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
3. 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.

2.2 Commonly used Terms

1. ‘Testator’: A person making a Will.
2. Legatee or beneficiary : A person to whom property is given under the Will.
3. Legacy : A benefit under the Will.
4. Executor : A person appointed by the testator to execute the Will as per the provisions of the Will.
5. Attestation : An act of witnessing the execution of the Will.
6. 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.
7. Probate : A copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate.
8. Codicil : A document which modifies or alters the provisions of the original Will and forms part of it.
9. Letter of Administration : A letter of the court appointing an administrator to the estate.
10. 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.

2.3 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.

2.4 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.

2.5 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.

2.6 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.

2.7 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.

2.8 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 restriction on the 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.

2.9 Common Clauses — Though no form is prescribed following clauses are commonly found in a Will.

2.10 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.

2.11 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

2.12 Stamp duty — No stamp duty is payable on execution of a Will. A Will can be made on a plain paper.

2.13 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.

2.14 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.

2.15 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 :—

1. The estate consists of an immovable property situated in the cities of Mumbai, Chennai and Kolkata.
2. 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.

2.16 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]

2.17 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