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Succession is a derivative of the word succeed (to inherit) and refers to the order in
which or the conditions under which one person after another succeeds to a
property. It implies the act of succeeding or following, as of events, objects, places
in a series, the transmission or passing of rights from one to another. In every
system of law provision has to be made for a readjustment of things or goods on
the death of the human beings who owned and enjoyed them. The rules of
succession are, in modern systems of law, subject to many rules. There can be no
doubt, however, that these rules primarily are the characteristics of the social
conditions in which that individual lived. They represent the view of society as to
what ought to be the normal course of succession in the readjustment of property
after the death of a citizen.
1
Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 277
WILLS – MEANING AND NEED
“The instincts and affections of mankind, in the vast majority of instances, WILL
lead man to make provisions for those who are nearest to them in kindred and who
in life have been the objects of their affections.”
A Will is a document which ensures that your wishes with respect to your assets
and property are followed after your death. There Often arises problems and
complications when a person dies without a Will. A will or a testament is a
declaration of the intention of the person making it with regard to the matters
which he wishes to take effect upon or after his death while a codicil is a document
which alters any one or more provisions in the will or adds any provision in the will
or rectifies the mistakes, if any, in the will. It is supplemental to and considered as
annexure to a will previously made. The concept of wills emanated from the right of
absolute ownership in one's property. When a property holder died, leaving heirs
and no will, it lead to unnecessary family squabbles. Wills and codicils came to the
rescue and aided in a fair distribution of property, as per the prerogative of the
executer of the will. Wills were a medium to distribute the property acquired by the
testator in his or her life through personal preferences and minimal interference of
law (as in case of Muslim Personal Law which allows only one-third of the testator's
property to be divested through wills).
S. S.2(h) of Indian Succession Act, 1925 provides that Will means the legal
declaration of the intention of a person with respect to his property, which he
desires to take effect after his death Will has been defined in Corpus Juris
Secundum as A ‘Will’ is the legal declaration of a man’s intention, which he wills to
be performed after his death, or an instrument by which a person makes a
disposition of his property to take effect after his death.
A person can ensure as to how his property should devolve and to whom it shall
devolve, after his death, through a Will. If a person dies without leaving behind his
Will, his property would devolve by way of law of intestate succession and not
testamentary succession (i.e. in accordance to the Will) Hence, it is preferable that
one should make a Will to ensure that one's actual intension is followed and the
property is devolved accordingly. Will is an important testamentary instrument
through which a testator can give away his property in accordance to his wishes.
The right to alter the will at any point time before the execution rests with the
testator. A will may be a simple form of expression, or a complicated disposition. In
either case, the beneficiary has to prove it by attesting witnesses, removing all
suspicious circumstances surrounding its execution. The onus of proving that the
will designates the beneficiary as the true heir to the property is on him and has to
be proven beyond doubt. There may be other suspicious circumstances attending
on the execution of the Will and even in such cases it is the duty of the propounder
to remove all clouds of doubts and satisfy the conscience of the court that the
instrument propounded( that is- the will) is the last Will of the testator. The
essence of every Will is that it is revocable during the lifetime of the testator.
A Will can be made at any time in the life of a person. A Will can be changed a
number of times and there are no legal restrictions as to the number of times it can
be changed. It can be withdrawn at anytime during the lifetime of the person
making the Will. A Will has to be attested by two or more witnesses, each of who
should have seen the testator signing the Will.
3. Takes effect after death: The Will is enforceable only after the death of the
testator
Under section 18 of the Registration Act the registration of a Will is not compulsory.
Also, the SC in Narain Singh v. Kamla Devi has held that mere non-registration of
the Will an inference cannot be drawn against the genuines of the Will. However it
is advisable to register it as it provides strong legal evidence about the validity of
the Will. Once a Will is registered, it is placed in the safe custody of the Registrar
and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be
released only to the testator himself or, after his death, to an authorized person
who produces the Death Certificate
Since a testamentary disposition always speaks from the grave of the testator, the
required standard of proof is very high. The initial burden of proof is always on the
person who propounds the Will.
Kinds Of Wills
Joint Wills: Two or more persons can make a joint Will. If the joint Will is joint and
is intended to take effect after the death of both, it will not be admitted to probate
during the life time of either and are revocable at any time by either during the
joint lives or after the death of the survivor.
Mutual Wills: Two or more persons may agree to make mutual Wills i.e. to confer
on each other reciprocal benefits. In mutual Wills the testators confer benefit on
each other but if the legatees and testators are distinct, it is not a mutual Will.
Mutual Wills are also known as reciprocal Wills and its revocation is possible during
the lifetime of either testator. But if a testator has obtained benefit then the claim
against his property will lie. Where joint Will is a single document containing the
Wills of two persons, mutual Wills are separate Wills of two persons.
Privileged Wills: Privileged Wills are a special category of Wills and other general
Wills are known as unprivileged Wills. S.65 of ISA provides that a Will made by a
soldier or a airman or a mariner, when he is in actual service and is engaged in
actual warfare, would be a privileged Will. S.66 provides for the mode of making
and rules for executing privileged Wills. Ss. 65 and 66 are special provisions
applicable to privileged Wills whereas other sections relating to Wills are general
provisions which will be supplementary to Sections 65 and 66 in case of privileged
Wills.
Who Can Make A Will
S.59 of Indian Succession Act provides that every person who is of sound mind and
is not a minor can make a Will.
Persons Of Unsound Mind
U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity of
the Will. Most of the Wills are not made by young persons who are fully fit but are
made by persons who are aged and bed ridden Hence, law does not expect that the
testator should be in a perfect state of health , or that he should be able to give
complicated instructions as to how his property was to be distributed. A sound
disposing mind implies sufficient capacity to deal with and understand the
disposition of property in his Will -
1) the testator must understand that he is giving away his property to one or more
objects
2) he must understand and recollect the extent of his property 3) he must also
understand the persons and the extent of claims included as well as those who are
excluded from the Will. In Swifen v. Swifen it was held that the testator must retain
a degree of understanding to comprehend what he is doing, and have a volition or
power of choice.
Minors: A minor who has not completed the age of 18 years is not capable of
making Wills. The onus of proof on determining whether the person was a minor at
the time of making a Will is on the person who has relied upon the Will. S.12 of the
Indian Contract Act also provides that a minor is incompetent to contract.
Section 59 in the explanation part states that married women can divest by will,
their personal property. This explanation is reinforced by section 14 of the Hindu
Succession Act that allows a woman to dispose her streedhan by her will. It also
states that a deaf and dumb person can also execute a will if he or she is capable of
understanding what he is doing. Similarly, an insane person can make a valid will in
the interval of sanity and a will made by a sane person, not in his senses due to
intoxication, illness etc, is not valid. Mere old age or illness of the testator however
cannot make the will invalid and has to be substantially established by evidence.
Here again, the onus to prove sanity (or insanity) at time of creation of will is on
the person initiating the suit challenging the will as the presumption of sanity lies
with the testator.
Other Persons Incapable Of Making A Will: Explanation I to S.59 of ISA provides
that a Hindu married woman is capable of disposing by Will only that property
which she can alienate during her lifetime. Explanation II provides that the persons
who are deaf, dumb or blind can prepare a Will if they are able to prove that they
were aware of what they were doing. Explanation III provides for persons who are
mentally ill and insane. However subsequent insanity does not make the Will invalid
i.e. if a person makes a Will while he is of sound mind and then subsequently
becomes insane the Will is valid and is not rendered invalid by subsequent insanity.
Further a person of unsound mind can make a Will during his lucid interval. A Will
made by a person who is intoxicated or is suffering from any other illness, which
renders him incapable of knowing what he is doing, is invalid.
Though the burden of proof to prove that the Will was made out of free volition is
on the person who propounds the Will , a Will that has been proved to be duly
signed and attested Will be presumed to have been made by a person of sound
mind, unless proved otherwise. Further, a bequest can be made to an infant, an
idiot, a lunatic or other disqualified person as it is not necessary that the legatee
should be capable of assenting it.
Whether registered or not, a Will must be proved as duly and validly executed, as
required by the Indian Succession Act. Once a Will is registered, it is placed in the
safe custody of the Registrar and therefore cannot be tampered with, destroyed,
mutilated or stolen.
S.62 of the Indian Succession Act deals with the characteristic of a Will being
revocable or altered anytime during the lifetime of the testator. S. 70 of ISA
provides the manner in which it can be revoked.
Alterations
S.71 of ISA is applicable to alterations if they are made after the execution of the
Will but not before it. The said section provides that any obliteration, interlineations
or any other alteration in a Will made after its execution is inoperative unless the
alteration is accompanied by the signatures of the testator and the attesting
witnesses or it is accompanied by a memorandum signed by the testator and by the
attesting witnesses at the end of the Will or some other part referring to the
alterations. the alterations if executed as required by the section would be read as
a part of the Will itself. However, if these requirements are not fulfilled then the
alterations would be considered to be invalid and the probate will be issued
omitting the alterations. The signatures of the testator and the attesting witnesses
must be with regards to the alteration and must be in proximity of the alteration.
Further they should be in the Will itself and not in a separate distinct paper. But if
the obliteration is such that the words cannot be deciphered then the Will would be
considered as destroyed to that extent.
Execution Of A Will
On the death of the testator, an executor of the Will (executor is the legal
representative for all purposes of a deceased person and all the property of a
testator vests in him. Whereas a trustee becomes a legal owner of the trust and his
office and the property are blended together) or an heir of the deceased testator
can apply for probate. The court will ask the other heirs of the deceased if they
have any objections to the Will. If there are no objections, the court grants probate.
A probate is a copy of a Will, certified by the court. A probate is to be treated as
conclusive evidence of the genuineness of a Will. It is only after this that the Will
comes into effect.
Restrictions On A Will
1. Transfer to unborn persons is invalid.
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 that description, the
bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to
an unborn person, a prior interest for life has to be created in another person and
the bequest must comprise of whole of the remaining interest of the testator
Invalid Wills
Wills invalid due to fraud, coercion or undue influence
S.61 of ISA provides that a Will, or any part of Will made, which has been caused
by fraud or coercion, basically not by free will, will be void and the Will would be set
aside.
The laws dealing with intestate and testamentary succession in India are not
uniform. A variety of different laws are in vogue and their application depends on
multiple factors like the religion or tribe of the parties , domicile, community, sect
in the community, marital status of the parties, religion of the spouse, and the type
of marriage the parties might have undergone. Before the advent of British rule,
the major laws of inheritance in India had either their roots in religion or were
deeply influenced by personal laws which owed their allegiance to religion and
custom. Muslims followed Muslim law, Hindus were governed by the Shastric and
customary law, Parsis had their own customary law. With a view to simplifying and
unifying the innumerable diverse and conflicting succession laws, the Indian
Succession Act was enacted in 1865.
India has a variety of laws based on considerations of religion and domicile of the
testator, for testamentary succession. The general law of the land for regulating
testamentary succession to the separate property of an Indian is the Indian
Succession Act, 1925. The Act applies to the undivided interest of a Hindu a
Mitakshara coparcenary. It is applicable to:
(i) Muslims
(ii) Indians domiciled in the State of Goa and Union Territories of Daman and Diu
(iii) Renocants of the Union Territory of Pondicherry
Muslims are governed by the Quranic law. The procedural rules of the Indian
Succession Act, 1925 with some reservation, also apply to Indian Muslims.
Section 30 of the Act lays down the rule for testamentary succession. The section
runs thus:
(1) Any Hindu may dispose of by will or other testamentary disposition of any
property, which is capable of being so disposed of by him in accordance with the
provisions of the Indian Succession Act, 1925, or any other law for the time being
in force and applicable to Hindus.
(2) For the removal of doubts it is hereby declared that nothing contained in sub-
section (1) shall affect the right to maintenance of any heir specified in the
schedule by reason only of the fact that under a will or other testamentary
disposition made by the deceased the heir has been deprived of a share in the
property to which he or she would have been entitled under this Act if the deceased
had died intestate.
Mention must also be made of the relevant provisions of the Indian Succession Act,
1925. This Act consists of eleven parts. Part VI relates to testamentary succession
and comprises of Sections 57 to 191. Of these only some apply to Hindu wills, being
those mentioned in Schedule III to this Act. But these, again, do not apply to all
Hindu wills, but only to such wills as are specified in section 57 of this Act. The
section is as below:
The provisions of the Part (i.e. Part VI) Schedule III shall, subjects to the
restrictions and modifications specified therein apply:
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh, or Jain on or after
the 1st day of September, 1870, 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 Hindu Courts of Judicature at Madras and
Bombay;
(b) 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
(c) to all wills and codicils made by Hindu, Buddhist, Sikh, or Jain on or after the
first day of January, 1927, to which those provisions are not applied by clauses (a)
and (b).
It is thus clear that section 30 authorizes all Hindu, male or female, separate or a
member of a joint family, to make testamentary disposition of his or her interest in
a property, a male Hindu could dispose of her separate property, even prior to this
Act, but he could not, however, do so in his interest in the coparcenary property, till
he sought partition thereof from other members of the family, so also a female
Hindu could not dispose of any property other than her Stridhan technically so
called. Now both male and female Hindu can dispose of his or her interest by
means of a will.
In K. Jwala Narasimha Reddy v. Narayan Reddy2, it has been laid down that Hindu
widow who becomes under section 41 of the Act, full owner of the property she
inherited with limited interest from her husband prior to the coming into force of
the Act, is entitled under section 30 of the Act to dispose of the property by will in
accordance with the provisions of the Indian Succession Act, 1925.
This right of a person to dispose of his property by a will, will not affect the rights of
the heirs mentioned in class 1 of the schedule to claim maintenance even if under
the will they have been deprived of their shares in the property, to which they
would have been entitled had the will not been executed.
In fact, this Act does not affect the Hindu Law of maintenance; and if there are
other heir also under that law besides those mentioned in class I of the schedule,
they too will be entitled to claim the same and create a charge on the estate
disposed of by means of the will.
Under the Hindu law, an heir is legally bound to provide, out of the estate which
has descended to him, maintenance for those persons whom the last proprietor was
legally or normally bound to maintain. It is to remove this doubt that the Act does
not affect the existing Hindu Law relating to maintenance that sub-section (2) has
been inserted.
“A will from the Muslaman point of view is a divine institution, since its exercise is
regulated by the Koran. It offers to the testator the means of correcting to a certain
extent the law of succession…of recognizing the services rendered by a stranger, or
the devotion to him in his last moments…”
2
A.I.R. 1979 NOC 41 (A.P.)
manner of gratuity postponed till after death of the testator. The document
containing the ‘will' is the wasiyat-nama. A wasiyat can be made orally or in writing
in which case it does not have to be attested. Though it is in writing, it need not be
signed by the testator and attested by the witnesses.The option of revocation or
modification in the will is available to the testator in his lifetime. The essential
condition for a valid will in Muslim law (as that in the Hindu testamentary
succession) is that only property with absolute ownership of the testator can be
bequeathed. A bequest which is contingent, or conditional or in the future or is
alternative to another, pre-existing one, would be void.
The qualifications for a valid will under Muslim Personal Law are almost similar to those
under the Act.
Firstly, the testator should be a major. According to Muslim beliefs, the age of majority is
attained at puberty, in absence of signs of which, it is assumed to be fifteen years.
However, this is not applicable in India and the age of majority remains as stated in the
Indian Majority Act. Secondly, the testator should be in legal capacity to create a will,
bequeathing only that which is his own, and not under any kind of fraud, coercion or
influence, with volition. He should be of sound mind while creating the will and should
continue to be so subsequently. In Also in Muslim Personal law, a person who has
attempted suicide cannot thereafter make a will, and if he does, the will shall be considered
void. The Courts however, have circumvented this rule as there have been instances where
court has regarded the will made by a Muslim who subsequently poisoned himself as valid
as he had contemplated suicide before creating the will, but not attempted it.
Islam recognizes the indispensible necessity that a man should have the power of
making bequests. This however does not imply that he has the power to encroach
upon the share of his legal heirs as stated in the holy Quran. Quoting Ameer Ali,
“the Prophet has declared that power should not be exercised to the injury of lawful
heirs”. Hence there are restrictions imposed on the testamentary capacity of
Mulsims.
As mentioned above, a Muslim has to obtain consent of all the surviving heirs to
devolve property in excess of one-third through will. This rule is in place to ensure
that the heirs have voluntarily consented to the infringement of their right in the
testator's property and are not wronged in anyway. Such consent may be through
words or implied conduct, but not through silence
Another limitation on the testamentary capacity is that this power should not be
used to benefit one particular heir, unless consented by other heirs. In the absence
of such approval, the will unjustly enriching one heir over all others shall not be
recognized as a valid will.
Hindu traditional law has some influence on the testamentary capacity of Hindus,
with respect to the fundamental rights on property as in Mitakshara and Dayabhaga
system respectively, most of the jurisprudence on Hindu testamentary succession is
statutory, codified in the form of the Hindu Succession Act, 1956 and the Indian
Succession Act 1925. On the other hand, the Muslim law on succession is entirely
personal and traditional in nature, emanating from the sayings in the holy Quran
and mandates of the Sharriat.
There are certain fundamental differences between the way property can be disposed off by
Hindus and Muslims. Firstly, while the limitations on testamentary capacity of a Hindu are
based on the mode of acquisition of property: that is whether the property is ancestral or
self-acquired, the limitations in Muslim law are based on the sayings of the Quran limiting
the property to be bequeathed by a wasiyat to one-third of the property left after
discharging the debts and funeral expenses of the deceased.
Muslim law permits a will to be made with respect to only one-third of the property of the
deceased. It gives importance to the rights of legal heirs. Legal heirs should be given their
due in any case , before any stranger get the benefit of the property by will. Thus it puts
the interests of legal heirs before those of other people to whom the deceased wanted to
give his property. It is a rational law in such aspect and doesn’t emphasize on ownership
and there is no element of arbitrariness in giving ownership of property to whomsoever the
owner wants to give. On the other hand , in case of Indian Succession Act, 1925 or the
Hindu law on testamentary succession , the concept of “absolute ownership” gives rise to
arbitrariness with respect to giving the property to whoever the owner wants and not
necessarily the legal heirs. Thus the interests of legal heirs are not secure. The owner
enjoys the freedom to name who so ever in his will as the successor or beneficiary.
The Hindu and Muslim laws of testamentary succession also differ in regards to
women. While women in Hindu law have the power to distribute through will, the
property they have absolute ownership in, in anyway and to anyone, the rights of
Muslim women, there are certain exceptions to the general rules. For instance,
generally, the share of property in bequeathed in will cannot exceed a-third unless
with consent of other heirs. However, if a Muslim woman has no blood relations and
her husband would be the only heir, then she can Will two-thirds of her property in
his favor. Another stark difference between the two laws is that Muslim women can
at no point of time get more than that inherited by the males in the family, if the
bequeathed share exceeds a-third of the property as well as in intestate succession,
where women get the exact half of their male counterparts.
Also, until recently, Hindus were restricted in giving away their property through
will for charity by application of section 118 of the Indian Succession Act. The
section plainly meant that to the extent to which the bequest is for religious or
charitable uses, the application of this section is attracted despite the fact that the
bequest may be for only a part of the property or some interest in the property.
This section was declared unreasonable, arbitrary and discriminatory and,
therefore, violative of Article 14 of the Constitution.
CONCLUSION
The Indian Succession Act, 1925 consolidated the laws of intestate (with certain
exceptions) and testamentary succession, applying to all the Wills and codicils of
Hindus, Buddhists, Sikhs and Jains throughout India. Muslim testamentary
succession however was excluded from the ambit of application of this act and
remains largely governed by the Muslim Personal Laws.
Since testamentary succession is a civil act, introducing some uniformity in the laws
followed by Muslims and Hindus will not attack the essence of the two religions.
Therefore, there should be no limitations imposed on the extent to which the
property can be bequeathed, the persons to whom such property can be bequeath
and the donation of the property by will for religious and charitable purpose and
this can only be done through a Uniform Civil Code for succession, as envisaged in
Article 44 of the Constitution.
BIBLIOGRAPHY
1. www.lawyersclubindia.com
2. www.indiankanoon.com
3. http://www.indianlawcases.com/
4. http://articles.timesofindia.indiatimes.com