Devolution of Immovable Property During Life time – Intervivos

 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.
 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. whole document is 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
 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.
 The last written Will shall prevail.
 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
 Probate is basically 'proving of Will' or 'establishing validity of the Will'.
 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.
Intestate succession:
 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:
 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.
 The legal heirs specified in Class II will get the estate of the deceased only
if there is no relative in Class 1. In this schedule, Father is named first and
brother/sister as second and so on.
 Class III and IV are Agnates (relations only through male) and Cognates
(relations not wholly through males). If there are no Agnates and
Cognates also, the estate will devolve upon the Government.
 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.