SUCCESION: Under Private International Law

INTRODUCTION

In the countries of continental Europe and other civil law countries all matters relating to
succession are governed by one single system of law, viz., and the law of the nationality of the
deceased. This is because these countries follow the principle of unity of succession (France and
Belgium are two exceptions) under which succession, testamentary as well as intestate, and all
matters relating to succession are regulated by one single system of law viz., the personal law of
the deceased which most countries take to be the law of the nationality of the deceased at the
time of his death. In the civic law countries, as well as under the personal law of Hindus and
Muslims in India, the property vests in the heirs immediately on the death of the deceased.

India, England and other countries which follow the common law traditions adopt the
principle of succession under which movables and immovable do not devolve under one single
system of law. In English law this distinction seems to be on account of historical reasons. In
England, freehold land could not be devised by will until 1540, while movables could be
bequeathed and were governed by the principle of mobilia sequuntur personam. Although the
historical reasons have disappeared, the distinction still exist in English Private International
Law under which succession to immovable is regulated by the lex situs and not by the personal
law of the deceased, while succession to movables is regulated by the lex domicile of the
deceased. Thus, if a person dies intestate leaving behind immovables in England, then devolution
to his property would be in accordance to English internal law, whatever might have been his
nationality or domicile. On the other hand, a British national or a person domiciled in England
dies leaving behind immovable properties in India, then devolution to his property would be
governed by the Indian law, i.e. the way an Indian court would be governed by the Indian law,
i.e. the way an Indian court would determine the question. Section 5, Indian Succession Act,
1925 statutorily recognizes this principle.

The section runs as under:

“(1) Succession to the immovable property in India of a person deceased shall be

regulated by the law of India, wherever such person may had his domicile at the time of his
death.
 (2) Succession to the movable property of a person deceased shall be regulated by the
law of the country in which such person had his domicile at the time of his death.”

The rules of English and Indian Private International Law could hardly be considered as
satisfactory. The will Act, 1963 has tried to solve of the difficulties. The will act.1963 has tried
to solve of the difficulties. The Act apples to form and construction, but as Graveson suggests, it
is submitted rightly, by analogy it can be applied to other branches of testamentary succession.

Thus the subject can be discussed much elaborately under the following heads:

a) Administration of Estates, b) Succession to immovables, and c) Succession to movables.

ADMINISTRATION OF ESTATES

In English law administration and succession are two different concepts. In English law no one is
entitled to deal with or distribute the property of a deceased person unless he has obtained
authorisation from the court. If a person dies intestate, or where a will has been made, but the
appointment of executor has failed for any reason, then the next-of-kin (husband, wife or child of
the deceased) can acquire the necessary authority for dealing with property by obtaining letters
of administration. In case a person has appointed an executor under the will who consents to act,
then the executor may obtain necessary authority by obtaining probate of the will. In such
administrator or executor the property vests immediately on the death of the deceased. Executors
and administrators are together referred to as personal representatives. In the countries of
continental Europe such persons are known as heirs use the term administrators’. The
administrators under English law have three main functions: (a) collection of assets of the
deceased, (b) payment of debts, and (c) distribution of residue among the heirs.

Jurisdiction of the Court

In the following three situations the question of administration of estate of the deceased may
arise before the English court:

(a) When the deceased has made a will and had also appointed an executor who consents,
then the executor may obtain probate of the will,
 (b) When the deceased has made a will, but has either not appointed an executor or the
appointment of executor has failed, then the ort may appoint an administrator, and
(c) When the deceased had died intestate, then the court may grant letters of administration.

Indian Law

Indian law closely follows English law. The provision relating to grant of probate and letters of
administration are contained in the Succession Act, 1925. In the matter of grant of letters of
administration or probate, the jurisdiction is conferred on the District Judge. The High Courts
have concurrent jurisdiction with the District Judge.

Jurisdiction

Under s. 270of the Succession Act,1925 the basis of jurisdiction are two : (a) if at the time of his
death the deceased had a fixed place of abode within the jurisdiction, or (b) if movable or
immovable property of the deceased is situated within the jurisdiction of the District Judge. In a
purely domestic case, any of these two alternatives bases of jurisdiction, but it seems that in a
conflict of laws case Indian court may decline to grant a probate or letters of administration
merely on the basis that the deceased had ‘a fixed place of abode’ in India. The grant will be
made only if the deceased had left some movable or immovable property within the jurisdiction.
From an early date Indian courts have taken the view that a grant of probate can be made of a
will executed abroad by a person who is neither domiciled here nor a national of India, if the
testator had left some immovable or movable property in India.

Choice of Law

In the matter of grant of letters of administrations Indian law makes a distinction between
Hindus, Muslims, Buddhists, Sikhs and Jains on the one side and other persons of the other. In
the former case, letters of administrations are not required and therefore, it is optional for them to
obtain letters of administration. In case someone desires to obtain letters of administration, then
s.218, succession Act lays down that grant may be made ‘to any person, who accordingly to the
rules for distribution of the estate applicable in the case of such deceased, would be entitled to
the whole or any part of such deceased’s estate.’ The heir of the deceased would be determined
on the basis whether he died as Hindu or as a Muslim. In case the deceased was not a Hindu or
Muslim, then those who are connected with him by marriage or by consanguinity are entitled to
obtain letters of administration. The order in which they may apply is laid down in s. 219 of the
Succession Act, 1925 which is as under:

(a) If the deceased has left a widow, administration shall be granted to the widow, unless the
court sees cause to exclude her wither on the ground of some personal disqualification, or
because she has no interest in the estate of the deceased.
(b) If the judge thinks proper, he may associate any person or persons with the widow in the
administration who would be entitled solely to the administration if there were no widow.
(c) If there is no widow, or if the court sees cause to exclude the widow, it shall commit the
administration to the person or persons whowould be beneficially entitled to the estate
according to the rules for the distribution of an intestate’s estate:
Provided that when the mother of the deceased is one of the class of persons so
entitled, she shall be solely entitled to administration.
(d) Those who stand in equal degree of kindred to the deceased are equally entitled to
administration,
(e) The husband surviving his wife has the same right administration of her estate as the
widow has in respect of the estate of her husband.

SUCCESSION TO IMMOVBABLE POPERTY

As has been seen earlier in this Chapter, the English and Indian Private International laws
follows the principle that succession to immoveables is governed by the lex situs.

English Law

Under English law the general rule is that all aspects of succession, intestate or
testamentary, are regulated by the lex situs.

When a person dies leaving immovable properties, then it is the lex situs and the lex situs
alone which decides matters relating to capacity to make will, revocation of will, power of
disposition, the validity of disposition and like matters. The law of domicile or nationality of the
testator has absolutely nothing to do with any of these matters. The Wills Act, 1963 giving effect
to the Fourth Report of the Private International Law committee and to the Draft Convention on
the Formal Validity of wills made at the Hague in 1961, lays down that will be formally valid if
it conforms to the internal law in force in the country where, at the time of its execution or of the
testator’s death, he was domiciled or had his b=habitual residence, or in a state of which, at either
of those times, he was a national.

Indian Law

The Indian private international law is substantially the same, Section 5(1), Indian Succession
Act, 1925 runs as under:

“Succession to the immovable property in India of a person deceased shall be regulated

by the law of India, wherever such person may have had his domicile at the time of his death.”

Under the Indian Private international law also, it seems to matters relating to capacity to make
will, revocation of will, power of deposition and the validity of disposition and like are governed
by the lex situs.

Provisions relating to construction of wills are laid down in ss. 74 to 111, succession Act, 1925
and relating to election ss. 180-190, succession Act, 1925. It appears that whenever a will of
deceased person in respect of immovables situated in India comes for construction before an
Indian court, the Indian court a bound to apply the lex fori,. i.e. rules of construction as laid
down in ss.74 to 111 of the Succession act, 1925. The Indian courts have all along taken the view
that intention of the testator is to be carried out. But clear and unambiguous dispositive words are
to be given effect to, and not to be controlled by the so-called intention of the testator.
LITERATURE REVIEW
CONCLUSION

Most foreign Countries have adopted the principle of unity of succession by which questions
relating to intestacy or to wills are governed by one ingle law, the personal law of the deceased,
irrespective of the nature of the subject-matter. The common law of England, however, has
consistently adhered to what is called the principle of succession under the destination of
immovables on the death of the owner is governed by the lex situs, not by the law of is domicile
as is in the case of movables. India, England and other countries which follow the common law
traditions adopt the principle of succession under which movables and immovable do not
devolve under one single system of law. In English law this distinction seems to be on account of
historical reasons. In England, freehold land could not be devised by will until 1540, while
movables could be bequeathed and were governed by the principle of mobilia sequuntur
personam. Although the historical reasons have disappeared, the distinction still exist in English
Private International Law under which succession to immovable is regulated by the lex situs and
not by the personal law of the deceased, while succession to movables is regulated by the lex
domicile of the deceased. Thus, if a person dies intestate leaving behind immovables in England,
then devolution to his property would be in accordance to English internal law, whatever might
have been his nationality or domicile.