Laws of Succession relate to legal principles of distribution of assets of a deceased individual. These include the order in which one person in preference of any or one person after another or any one person in particular share with any other person succeeds to the property/estate of the deceased person. Corporate persons having perpetual existence are not covered in this and have separate laws relating to Winding up, Reorganization and Closure.
The laws of succession can broadly be divided in two parts, firstly, where deceased has left behind a valid and enforceable 'Will'; and secondly, where a person died without leaving behind such 'Will'
Wills and essential requirements of Valid Will
Will is a written document showing the desire of a deceased person regarding distribution of his estate. If the Will is found to be valid and enforceable, the estate of the deceased would be distributed in accordance with the same.
Will can be made by any person capable of entering into an Agreement. Minors or a person under effect of intoxication or any other influence such as coercion, fraud, bout of illness which takes away his free will or ability to understand effect of his action, cannot make Will, while such state continues.
Indian Succession Act, 1925 governing Wills has not prescribed any particular format or technical requirement. The essential requirements are:
It should be written in a manner that the intention of the writer (called Testator) becomes clear. Since the object is to give effect to desire of the Testator, small errors in name or details of property could be ignored and whole document read to understand the true intention. It should be signed by the Testator and two witnesses. Those who cannot sign (illiterate or due to illness) can put their thumb impression. Signature should be at the bottom / end to show it is put to give effect to whatever appears above / before that signature. Witnesses should be independent persons and not beneficiaries under the Will. If any dispositions have been made in their / their wife's favour, such disposition would be void. However, his signing as witness would be valid No technical term or format has been prescribed in the Act. Further, Wills need not be made on stamp paper.
Wills are not required to be registered
It is usual to appoint Executors in the Will. Beneficiaries could also be Executors. Where a bequest is made to a person by a particular description, and there is no person in existence at the testator's death who answers the description, the bequest is void. However, exception is made in case of lineal descendants i.e. if the legatee dies before the death of testator, the bequest will pass on the lineal descendant of such legatee and not lapse If an unmarried person makes a Will and thereafter, marries, the said Will would be considered as cancelled or revoked.
One can make Wills any number of times. The last written Will shall prevail. Further, effort should be made to give effect to maximum bequests of the Testator. As such, if some part of Will cannot be given effect to due to ambiguity or impossibility, balance part would remain valid. .
It is highlighted that in case of inconsistency between two parts of the Will, later part will prevail over earlier part as Testator is allowed to change his mind. This is unlike Sale Deed or Agreement where earlier part prevails (Kailvelikkal Ambunh (Deceased) by LRs v H Ganesh Bhandary (AIR 1995 SC 2491).
Special provisions for making a Will has been made for soldiers and airmen being employed in an expedition or engaged in actual warfare, and also for mariner being at sea. They can also make Wills orally in front of two witness or written by hand, without requiring signature or witness or written by someone else and signed by them without attestation by witness. Such Wills are called 'Privileged Wills' and have been provided in law to take care of special circumstances. Such Wills become Null one month after Testator ceases to be entitled to make privileged Wills.
Probate is basically 'proving of Will' or 'establishing validity of the Will'. Probate is only required under jurisdiction of High courts of erstwhile presidency towns, namely Mumbai, Kolkata and Chennai. In other places, probate is not necessary, except for properties situated within jurisdiction of Mumbai, Kolkata and Chennai.
For obtaining probate, Executor of the Will shall make suitable Petition stating:
He is named Executor in the Will
the date and time of the testator's death
that the document enclosed is last Will of the Testator
that the Will has been properly signed and witnessed
the amount of assets likely to come to the Petitioner's hand
that the Court has the jurisdiction based on domicile of Testator or some immovable property being situate therein.
Hon'ble Supreme Court in K Laxmanan vs Thekkayil Padmini & Ors (2009 AIR SCW 10) held that burden of proof is on propounder. He has to prove legality & genuineness of Will by proving absence of suspicious circumstances, testamentary capacity and signature of testator.
Succession of the person dying without leaving a valid and enforceable Will, is called Intestate Succession. Principles of distribution of assets in this regard are based on personal laws applicable to Deceased.
Where a person makes a Will for some of the properties only and leaves out balance, or where Will is not found valid for whatever reason, such balance property shall devolve in accordance with principles of Intestate succession.
Laws of Intestate succession are different for Hindu, Muslims and Christians.
Hindu - For Hindus, which include Buddhist, Jains, Sikhs, Arya Samaj, the law of intestate succession is codified in Hindu Succession Act, 1956. The principles of devolution of property of deceased in this case are as follows:
Male Hindus: There are four classes of Legal heirs. The property will pass on exclusively to legal heirs specified in Class 1 if there is anyone available. Class 1 relatives include wife, son/daughter, mother, son/daughter of predeceased son/ daughter, widow of the predeceased son and few other such relatives. The property would be distributed in equal share to widow, mother and each of children. In case, any of the child has predeceased, his spouse and children will collectively get his / her share. Example, A has died. He has left behind B, his wife, C, his mother and D, elder son, F, youngest son and G, his daughter. E, his middle son had died few years earlier and he left behind his wife E-1, and two children E-2 and E 3. His property would be divided in 6 parts, Each legal heir would get one part. Wife and children of deceased E would collectively get one part.
The legal heirs specified in Class II will get the estate of the deceased only if there is no relative in Class 1. Relatives in Class II have been put in sequence and it is provided that the relative named first in list would get full, in preference to the next. Second person will get in Full, only if first named relative is not there and so on. In this schedule, Father is named first and brother/sister as second and so on. As such, if there is no relative in class 1 and father is there, then he will inherit the estate fully. If father is not there, then brothers and sisters of the deceased shall inherit the estate fully.
Class III and IV are Agnates (relations only through male) and Cognates (relations not wholly through males). In case there are no heirs even in class II, then succession would devolve upon agnates of such deceased, failing which by cognates. If there are no Agnates and Cognates also, the estate will devolve upon the Government. Among the Agnates and so also in cognates, the one closer in relation is preferred.
For female Hindu, class 1 relatives are somewhat similar ie Husband, sons and daughters, including children of predeceased son/daughter. If none of them are there, estate shall devolve upon the heirs of the husband. If there are no heirs of husband also, it will devolve upon the mother and father of the deceased, if alive. One special provision is there for property inherited by the female Hindu from her father or mother. Such property would revert back to the legal heirs of her father, in case she does not leave behind any son or daughter.
The law also provides that if two people die simultaneously, say in a car or plane accident and exact timing of death of each cannot be ascertained, it shall be presumed that the older one died first, unless contrary is proved. Further, person guilty of murder of any person shall not inherit his property. However, his heirs are not so disqualified, and it will be presumed that such murderer died immediately before death of murdered person. These provisions are important as they affect the line of succession / ratio of property coming to legal heirs.
Muslims: Different personal laws are there for Shias and Sunnis and such laws are not codified in any Statute. For Sunnis following Hanafi Law (most Muslims in India follow this law) personal law restricts legacies to maximum one-third of the estate remaining after taking care of funeral expenses, outstanding wages of domestic servants and debts etc.
The remaining estate is required to be distributed amongst legal heirs. There are three classes of legal heirs:
Sharers- these legal heirs are entitled to a prescribed share of the estate
Residuaries – they will get remaining estate, if anything remains are sharers get their prescribed shares.
Distant kindered – they are other relatives who are neither sharers nor residuaries. They will only get if there are no Sharer or residualry.
Meher i.e. Dower promised by husband, would be 1st charge (priority debt), if the same has not been paid by deceased during his lifetime.
Christians: As regards Christians, the widow/widower inherits one-third share and balance goes to the lineal descendants. In case there are no lineal descendants, then one-half goes to the widow and balance to the other relatives, i.e. prescribed as kindered. Amongst the lineal descendants, each child or if pre-deceased, his children collectively will get equal shares. In the kindered, the first preference is given to the father and in case he is predeceased then mother, brother and sister (or their children together if any one is predeceased) equally.
Originally Published by The Law Point, June 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.