PRIVATE

INTERNATIONAL
LAW
SUCCESION
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(movables follow the
person). 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 have 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
authorization 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:
• When the deceased has made a will and had also appointed an
executor who consents, then the executor may obtain probate of
the will,
• 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
• 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 Section 270 of the Succession Act,1925 the basis of
jurisdiction is 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 Section 218 of 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 Section 219 of the Succession Act, 1925 which is
as under:
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.
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.
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 who
would 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.
Those who stand in equal degree of kindred to the deceased are
equally entitled to administration,
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 follow the principle that succession to
immoveable is governed by the lex situs.
The term ‘lex situs’ refers to the law of the place in which property is
situated for the purposes of the conflict of laws.
For example, property may subject to tax pursuant to the law of the
place of the property or by virtue of the domicile of its owner. Conflict
is the branch of public law regulating all lawsuits involving a
"foreign" law element where a difference in result will occur
depending on which laws are applied.
When a case comes before a court and all the main features of the
case are local, the court will apply the lex fori, the prevailing
municipal law, to decide the case. But if there are "foreign" elements
to the case, the forum court may be obliged under the conflict of laws
system to consider:
• whether the court has jurisdiction to hear the case;
• it must then characterize the issues, i.e. the factual basis of the
case to its relevant legal classes; and
• then apply the choice of law rules to decide which law is to be
applied to each class.
The lex situs is a choice of law rule applied to identify the lex
causae for cases involving title to, or the possession and use of
property. In law, there are two types of property:
• Real property is land or any permanent feature or structure above
or below the surface. Ownership of land is an aspect of the system
of real property or realty in common law systems.
• All other property is considered personal property in common law
systems (movables in civil law systems and the conflict of laws),
 and this property is either tangible or intangible, i.e. it is either
physical property that can be touched like a computer, or it is an
enforceable right like a patent or other form of intellectual
property.

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 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.
Who can make a will?
Section 59 of the Indian Succession Act establishes that a will can be
made by any person who is eligible to contract. That means any
person who is of sound mind and a major is competent to make a
will. Any minor can make a will only through a testamentary
guardian. A person who is deaf, dumb or blind is also eligible to
make a will as far as they know what they are doing.
Provisions relating to the Attestation, Revocation, Alteration and
Revival of Wills are laid down in Sections 67 to 73 of Indian
Succession Act,1925.
Provisions relating to construction of wills are laid down in Sections
74 to 111 of Indian Succession Act, 1925 and relating to election
Sections 180-190 of Indian 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 Sections 74 to 111 of the Succession
Acts, 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.

SUCCESSION TO MOVABLE PROPERTY

English Law
Jurisdiction of the English Court: In English Law succession is
usually termed as beneficial distribution of property. Theoretically, if
the English court has jurisdiction to grant administration, it has also
jurisdiction to determine beneficial distribution of property. But as
has been earlier, in the absence of the local assets the English court
exercises jurisdiction only when the foreign country where assets are
situated requires a grant of administration from the court of the
country of the domicile of the deceased.
But if he died leaving behind property in England, the English court
has jurisdiction to determine the validity of his will, the construction
and effect of the will, persons entitled to succeed to property and all
matters connected with succession, even though the deceased died
domiciled abroad.
Jurisdiction of Foreign Courts
The court of the country where the deceased died domiciled have
jurisdiction to determine succession to all movables whether
situated, though courts do not recognize that the courts of domicile
have exclusive jurisdiction. However, “while title has been
adjudicated upon by the courts of the domicile, such adjudication is
binding upon, and must be followed by, the courts of this country.”
It may be conjected that the English law would concede jurisdiction
to courts of the country where movables are situated even if the
deceased is not domiciled there, as English court also exercise
Jurisdiction on this basis.
Choice of Law
Intestate Succession
Intestate succession to movable is governed by the law of the domicile
of the deceased person at the time of his death, irrespective of the
fact as to the place where he was born, or died, or of the situation of
movables at the time of his death. It is the Lex domicilii which
determines the heirs who are entitled to take the relative proportion
to which they are entitled to, the right of representation, the rights of
a surviving spouse, the liability of the distributes for unpaid debts,
the relationship of the claimant with the deceased, and like matters.
Testamentary Succession
Testamentary succession to movables is also governed by the law of
the country where the deceased was domiciled at the time of his
death. If a deceased person domiciled elsewhere dies leaving behind
his assets in England, then a grant of probate in England is essential
and so far as the administration is concerned it is governed by the
lex fori, but then all questions relating to beneficial succession must
be decided in accordance with the law of the domicile of the deceased.
In other words, the executor must ascertain as to who are the persons
entitled to succeed and in what proportion they would take the
property under the law of the domicile.
 WILL
Capacity to make will
The testamentary capacity, i.e. personal capacity to make will, is
determined by the lex domicile of the testator. If the testators domicile
is the same at the time of making of the will as well as at the time of
the death, there is no difficulty.
Formal Validity
Under the English common law, the rule has been that the will of
movables to be formally valid must comply with the law of the
domicile of the testator at the time of his death. This rule led to much
inconvenience and hardship and led to the passing of the will Act,
1861which was not only unsatisfactory but discriminatory between
the British subject and foreigners.
Material Validity
The English Private International Law laid down that the material
validity of a will is governed by the Lex Domicilii of the testator at the
time of his death.
Construction of Wills
The writers of English law and some English decisions take the view
that construction of will should be made under the law of the domicile
of the testator at the time when the will is made.
Revocation of Wills
The rules relating to revocation of will differ from country. Ordinarily,
a person who has capacity to make will, will also have the capacity
to revoke it. A will may stand revoked by the act of the testator, or by
the operation of law.
 Power of Appointment
English law empowers a person to give, by an instrument, such as
will, to some other person or to himself a power to appoint by will the
person or persons who would succeed to the property on the death
of the person to whom the power is given. The person who thus gives
the power is known as the “Donor of the Power” of “the appointor”
and the person to whom the power is given is known as “the donor of
the power” or the appointee”. The power of the appointment may be
either general or special.
Indian Law
So far as the testamentary succession is concerned, in India,
members of all communities are governed wholly or partly by one law,
viz’. the Succession Act, 1925, though different rules of succession
apply to members of each community in the case of intestate
succession. Law of testamentary succession in India is contained in
Part VI of the succession Act, 1925, and constitutes the law of
testamentary succession in India, and applies to all communities,
except the Muslims. To the Hindus it applies with some
modifications. As to the other communities, such as Christians and
Parsis, it applies fully.
Section 5(2) of the Succession Act, 1925, as has already been
noted, contains a rule of conflict of laws. It lays down that succession
to the movables of a deceased person is to be regulated by the law of
the country in which such person had his domicile at the time of his
death. But the application of this provision has been excluded in case
the deceased is a Hindu, Mohammedan, Buddhist, Sikh or Jain.
 Jurisdiction of the Court
Jurisdiction of the Indian Court: It has been seen in Part I of this
chapter that under the Succession Act, 1925 letters of administration
or probate can be obtained in respect of the letters of administration
or probate can be obtained in respect of the estate or will of any
person, including a Hindu and a Muslim. The Indian courts exercise
jurisdiction either on the basis of presence of assets within the
jurisdiction, or that the deceased had a fixed place of a abode at the
time of his death within the jurisdiction. The Indian court does not
have as wide a jurisdiction as the English court has under the Act of
1932 to grant administration in respect of “any deceased person”.
But it seems, in view of the generality of the provision of s. 5(2), in
respect of movables, the court may exercise jurisdiction on the basis
that the deceased died domiciled in India whenever it is called upon
to exercise jurisdiction in the interest of justice.
Jurisdiction of Foreign Court: There is no reported decision of
Indian court as to on what basis the Indian Courts would recognize
the jurisdiction of the foreign courts to determine succession to
movables. In this connection the main question is : suppose, an
Indian Hindu dies domiciled in England leaving behind assets in
India, will the Indian Courts accept the determination of Succession
in accordance with the lex domicilii of the deceased? The question
becomes complicated as for Hindus and Muslims, strictly speaking
there is nothing like lex domicilii, they are governed by their personal
law, which is the law of their community. When the English court
determines succession on the basis of the lex domicilii of the
deceased, then it should apply the personal law of the deceased
Hindu, as in his case, broadly construed, that will be the law of his
domicile. If the English court applies any other law, then the Indian
courts will not accord recognition to such assumption of jurisdiction.
Choice of Law
Interstate succession
It seems to be clear that intestate succession to movables is governed
by the lex domicile of the of the deceased at the time of the death.
But will it equally apply to Hindus and Muslims? Under the influence
of English private international law, it is often forgotten that
nationality is an important connecting link in personal matters in
India. Suppose, a Burmese Buddhist dies in Burma leaving behind
movable in India. The Buddhist are included in the definition in the
term ‘Hindu’. Will succession to his property be regulated under
Hindu law? The answer will be affirmative, if we ignore his
nationality.
It should be ignored that in India intestate succession differs from
community. Hindus are governed by their own law of succession,
Muslims by Muslim law of succession, Parsis are governed by the
Parsi law of succession, and Christian and others by their own laws
of interstate succession.
Testamentary Succession
As has been seen earlier, with minor exceptions, there is one law of
testamentary succession in India. Muslims are governed by their own
law of testamentary succession and provisions relating to
testamentary succession in the Succession Act, 1925 do not apply to
them. However, provisions relating to them.
Capacity
The Indian law lays down the broad rule that succession to movables
is governed by the law of the domicile of the deceased at the time of
his death. The question is: does the general principle apply to
capacity to make will? It is submitted as far it concerns the personal
capacity, it should be governed by the law of the domicile of the
deceased at the time of making of the will, as the same arguments
apply here as they apply under English Private International Law.
Formal Validity
India has not enacted anything like the English statutes of 1861and
1963. Therefore, it seems that the general rule enacted in Section
5(2), Succession Act would apply to formal validity of wills. But in
respect of a will of foreign domiciled abroad, the formal validity would
be determined by the domiciled abroad, the formal validity would be
determined by the lex domicilii of the testator at the time of his death-
this is because of the provision of Section 5(2), Succession Act, 1925.
Material or Essential Validity
It seems that under India private international law the same rules
apply to material validity as they apply to formal validity. The
material validity of the will of a foreigner will be governed by the law
of his domicile at the time of his death. Under Muslim law, a Muslim
cannot bequeath more than one-third of his property; if an Indian
Muslim bequeaths one-half of movables situated in India and if the
validity of his will comes into question before an Indian court, then
such a bequeath will not be valid even if the Muslim died domicile in
England.
Construction of the Will
It seems that the same consideration apply to the interpretation or
construction of will of movables under the Indian law as they apply
under English law. The Succession Act, 1925, Chapter six contains
provisions relating to construction of Wills.
Revocation of Will
Under the law a will may be revoked
(a) by another will or codicil of the deceased or by some writing
declaring an intention to revoke the same and executed in the
manner a will is executed
(b) by destroying the will,
(c) by marriage of the testator, but this doesn’t apply to the wills of
Hindus and Muslims.
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.