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Testamentary Succession To Movable Property

The law of succession is the law governing the devolution of property (transfer of property from the owner of the property to his legal successors because of his death). The laws dealing with inheritance in India are not uniform. Diversity of laws are involved and their application depends on multiple factors like the religion of the tribe or the domicile of the parties; communities or sects in the communities to which they belong, marital status of the parties, and also the religion of the spouse. Succession can be classified into Intestate succession and Testamentary succession.

Meaning of Testamentary Succession:

In simple terms, it is defined as the succession of property by a WILL or TESTAMENT as per applicable rules of law. As per Hindu Law, any male or female can make a Will to transfer his or her property or assets to anyone. The Will is treated as valid and enforceable by law.

An important point to note here is that the transfer of property happens as per provisions mentioned in the Will and not as per the inheritance law. However, if the Will is invalid or illegal then the transfer or devolution of property happens as per the law of inheritance.

Alternatively, Testamentary succession is also referred to as the right of inheritance.

Important concepts of testamentary succession

The Indian Succession Act, of 1925 is identically applicable for Testamentary succession across all religions (Hindus, Sikhs, Jains, Buddhists, Christians, Jews, and Parsis), other than Muslims. Therefore, rules regarding the construction of wills, the validity of wills, concepts of capacity and restrictions, clauses for revocation and revival of will, and many more important concepts are elaborately defined in Part VI under Sections 57 to 391 of the Indian Succession Act, 1925. Some important concepts of Testamentary succession are stated below.
  1. Persons capable of making wills:
    • Section 59 of the Indian Succession Act, of 1925 states that a person who is of sound mind and is not a minor can transfer his property by will. A blind, deaf or dumb person or a married woman is not incapacitated from making a will if they know the consequences of it. Thus, only people devoid of making the will, are the people who are of unsound mind or in an improper state of mind due to intoxication, illness, etc.
  2. Testamentary guardian:
    • Section 60 of the Indian Succession Act, of 1925 states that a guardian or guardian can be appointed by will by a father for his minor child.
  3. Revocation of will by testator's marriage:
    • Section 69 of the Indian Succession Act, of 1925 states that all kinds of wills that were made before one's marriage, stand revoked by the marriage of the testator.
  4. Probate of will:
    • 'Probate' means a copy of a will certified by the court granting the administration of the property of the testator. In case of Parsi dying after the commencement of the Act, probate is mandatory, if the will is made or the immovable property to be devolved under the will is situated within the jurisdiction of three presidencies; Calcutta, Madras, and Bombay. On the other hand, a Christian does not need to obtain Probate for his will. The will alone would suffice.
  5. Privileged and unprivileged wills:
    • Every testator (who is not a soldier, mariner, or airman) can execute an unprivileged will by fulfilling some essential conditions of Section 63 of the Indian Succession Act, 1925, which are :
      • Every will must be signed by the testator or his mark should be affixed to the will, or the testator can get it signed by some other person in his presence and by his direction.
      • The testator's signature or mark, or the signature of the person signing for him, shall appear intentional.
      • The will must be signed/attested by at least two witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person signing the will for the testator. All the witnesses shall sign the will in the presence of the testator. However, the presence of all the witnesses at the same time is not mandatory. Also, no particular format of attestation is required.
    • A privileged will, on the other hand, is made by a soldier engaged in warfare or expedition, or, an airman, or a mariner at sea. These wills are made under Section 66 of the Indian Succession Act, of 1925, which was and can be either oral or in writing. The will must be handwritten by the testator himself. Though the testator needs to sign the privileged will, it does not need to be attested.
  6. Bequeath of property to religious or charitable causes:
    Section 118 of the Succession Act, 1925 (applies to Christians and not Parsis) states that a person having a nephew or niece or nearer relative can bequeath his property to religious or charitable causes only if he fulfils two conditions:
    • Such a will has been executed at least twelve months before his death.
    • Such a will has been deposited within six months from its execution in the safe custody of wills of living persons, provided by law.

However, in the case of John Vallamattom v. Union of India, (2003) 6 SCC 611, the Supreme Court declared Section 118 as invalid and unconstitutional as it was discriminatory and violative of Articles 14,15, 25, and 26 of the Constitution.

Testamentary succession

Testamentary succession or disposition by wills refers to a case when the deceased leaves behind a will and the devolution of property takes place as per his wishes expressed in his will.

Intestate succession

Intestate succession refers to a case when the deceased person has passed away (a) leaving behind the property for which he has not left a succession plan i.e. a will (b) if the bequest of property is for illegal or immoral purposes (Section 127 of the Indian Succession Act, 1925). In such instances, the devolution of property of the deceased happens as per the laws applicable to the succession of the property of the deceased which in India depends upon the religion followed by the deceased at the time of death.

Intestate and testamentary succession across religions

Before the advent of British rule in India, major laws of inheritance either had their roots in religion or were deeply influenced by Personal Laws which owed their emergence to customs and religion. It was only after the enactment of the Indian Succession Act, 1865 which was later replaced by the Indian Succession Act, 1925 that many communities (Christians, Jews, and Parsis) in India started being governed by codified laws.
  • For Hindus, Jains, Buddhists, and Sikhs
    For intestate succession, the devolution of property happens according to the scheme laid down under Chapter III of the Hindu Succession Act, 1956. For testamentary disposition, provisions of Part VI of the Indian Succession Act, 1925 are applicable.
  • For Christians and Jews
    For intestate succession, the provisions under Sections 31 to 49 of the Indian Succession Act, 1925 are applicable. For testamentary disposition, provisions of Part VI of the Indian Succession Act, 1925 are applicable.
  • For Parsis
    For intestate succession, the provisions under Sections 50 to 56 of the Indian Succession Act, 1925 are applicable. For testamentary disposition, provisions of Part VI of the Indian Succession Act, 1925 are applicable.
  • For Muslims
    The Muslim Personal Law (Shariat) Application Act, 1937 is applicable for intestate succession. However, for testamentary succession Muslim law states that a will shall be valid for only 1/3rd property of the deceased if it is not given formal consent by all the heirs of the deceased.

Which law governs Testamentary Succession?
In India, Testamentary succession is governed by The Indian Succession Act 1925 including intestate succession. Most importantly, this law extends to the whole of India but is only applicable to the Wills and codicils of Hindus, Sikhs, Buddhists and Jains by religion.

Also, for Hindus, the intestate succession and all its exceptions are codified in the Hindu Succession Act, of 1956. It does not apply to Muslims, Christians, Parsis and Jews. For example, Muslims are allowed to dispose of their property and assets according to Muslim Law.

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. Subject to the Will being made by a competent person in writing, executed by a testator and attested by at least two witnesses no other legal requisites are provided for in the Indian Succession Act.

It is always advisable to write a well-thought-out and fair Will. In case of any ambiguity or in the absence of a Will, there is a possibility that the legal heirs of the deceased would engage in unwanted ugly legal battles to claim their rightful share.


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