Chapter 3 - India Specific-Salient Features of The Indian Succession Act 1925 in Testame

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Module: Estate Planning-India Specific Content
Copyright© 2019-2020 Financial Planning Standards Board

Chapter 3: Salient
Features of the Indian
Succession Act, 1925 in
Testamentary and
Intestate Succession

Learning Objectives
Upon completion of this section, students should be able to:

3-1 Understand common definitions.
3-2 Identify the applicability and salient features of the ISA.

Topics
3.1. Introduction
3.2. Definitions
3.3. Applicability of the Indian Succession Act, 1925
3.4.1. Persons capable of making a Will
3.4.2. Animus testandi
3.4.3. Lapse of Legacy
3.4.4. Bequest made to a class of persons
3.4.5. Rule against perpetuity
3.4.6. Onerous, Independent and Contingent Bequests
3.4.7. Specific & Demonstrative Legacy
3.5.1. General Rules of Intestacy
3.5.2. Rules specific to Parsis dying intestate
3.6. Chapter Review Questions
3.1. Introduction
Testamentary succession is succession by a testament or will made during
one’s lifetime, determining the devolution of movable and immovable property
after death. Testamentary succession in India is governed by the ISA and/or
applicable personal law.
This chapter deals with the salient aspects of testamentary succession, specifically
Part VI of the ISA pertaining to wills, including wills of (i) Hindus, Jains, Sikhs,
Buddhists, subject to section 57, (ii) Indian Christians, (iii) Parsi and (iv) Jews. In
matters of testamentary succession, the ISA will override all Hindu customs,
traditions, and usages. This Chapter also deals with general rules of Intestate
Succession as dealt with under the ISA.

3.2. Definitions
Important definitions:
Will
As defined in Chapter 1, a ‘Will’, under section 2(h), is a legal declaration of the
intention of a testator with respect to his property which he desires to be carried
into effect after his death. Part VI (Testamentary Succession) contains provisions
on wills. While the words will and testament are generally synonymous, the ISA
only uses the term ‘will’.
Testator
A testator (not defined) is understood to mean the maker or creator of a will.
Under section 59, every person who has attained majority (above 18 years where
there is a natural guardian, and above 21 years in case of an appointed guardian)
and is of sound mind, may make a will. A female who makes a will is called a
testatrix.
3.2. Definitions (Contd.)
Legatee
A legatee (not defined) is understood to mean a person who inherits under a
will.
Codicil
A ‘Codicil’, under section 2(b), means an instrument made in relation to a will,
which explains, alters or adds to its dispositions, and is deemed to form a part of
the will.
Executor
An ‘Executor’, under section 2(c), means a person to whom the execution of the
will of a deceased person is, by the testator's appointment, confided; or simply put,
a person appointed by a testator to execute the will.

3.2. Definitions (Contd.)
Administrator
An ‘Administrator’, under section 2(a), appointed by a competent authority to
administer the estate of the deceased when there is no executor.
Probate
A ‘Probate’, under section 2(f), means a copy of a will certified by a Court with a
grant of administration to the estate of the testator.
Letters of Administration
Letters of Administration are granted where there is no will, or a will in which an
executor has not been appointed.
Minor
‘Minor’, under section 2(e), means a person who has not completed the age of
eighteen years. A minor cannot make a will, under section 59.
3.3. Applicability of the Indian Succession Act, 1925
The applicable/governing laws with respect to both testamentary and intestate

succession for different religious groups in India are as follows:
Succession for Hindus - The ISA applies to the testamentary succession of
Hindus. Intestate succession is governed by the HSA.
Succession for Muslims - The ISA does not apply to testamentary and intestate
succession of Muslims. Succession for them is based on their uncodified personal
law derived from religious sources (outlined in Chapter 2).
Succession for Jains, Sikhs and Buddhists - The ISA governs the testamentary
succession of Jains, Sikhs and Buddhists. Intestate succession for them is
governed by the HSA.
Succession for Christians, Parsis and Jews - Both testamentary succession and
intestate succession for Christians, Parsis and Jew is governed by the ISA.
3.4.1. Persons capable of making a Will
Section 59 - capacity to make a will, which provides soundness of mind and
age of majority as prerequisites. Soundness of mind is understood as the
capacity to properly understand the meaning and consequences of one’s actions,
and specifically capacity to understand the disposition of property under a will.
● Relevant explanations to section 59 are outlined below:
(a). Explanation 2 allows the deaf, dumb and blind to make a will if they are
able to know what they do by it.
(b). Explanation 3 allows a person who is ordinarily insane to make a will
during an interval when he is of sound mind. Subsequent insanity does not make
a will invalid.
(c). Explanation 4 – contains a prohibition to making a will when one is in a
state of mind that one does not know what one is doing. This includes
intoxication and illness.
3.4.1. Persons capable of making a Will (Contd.)
General Principles
A will that appears to be duly signed and attested is presumed to be made by
a person of sound mind, unless proved otherwise.
The general rule relied by Indian Courts is that a person propounding a will (offering
it for probate) would be called upon to show, by satisfactory evidence, that it was
signed by the testator, that the testator, at the relevant time, was in a sound and
disposing state of mind, that the testator understood the nature and effect of the
dispositions and put his signature to the document of his own free will.
If a will is rational on the face of it, and appears to be duly executed, it is
presumed, in the absence of evidence to the contrary, to be valid.

3.4.2. Animus testandi
Animus means "intention to do something” and testandi “to make a will or

testament”. Therefore, animus testandi is the intention to make will or testament is
and a basic requirement of a valid will.
A person may produce an instrument in compliance with the legal requirements of a
valid will, yet it may fail to take effect as valid, because of the absence of animus
testandi, that is, without any intention that it should affect the disposition of his
property after his death.
When considering the validity of a will, courts look into the fact of whether there
was animus testandi, that is, whether the testator had the intention to convey his
property by means of the instrument .

3.4.3. Lapse of Legacy
Section 105 provides that if a legatee does not survive the testator, the legacy
but will lapse and form part of the residue of the testator's property, unless it
goes to another person under the will. To entitle the representatives of the legatee
to receive the legacy, it must be proved that he survived the testator.
Under section 106, if a legacy is given to two persons jointly, and one of them dies
before the testator, the other legatee will take the entire legacy.

3.4.4. Bequest made to a class of persons
Section 111 deals with survivorship in case of bequest to a described class. It

provides, “Where a bequest is made simply to a described class of persons,
the thing bequeathed shall go only to such as be alive at the testator's death.
Exception.- If property is bequeathed to a class of persons described as standing in

a particular degree of kindred to a specified individual, but their possession of it is
deferred until a time later than the death of the testator by reason of a prior bequest
or otherwise, the property shall at that time go to such of them as are then alive,
and to the representatives of any of them who have died since the death of the
testator.”

3.4.5. Rule against perpetuity
The rule against perpetuity is defined in section 114. It provides that a bequest will
not be valid if vesting of the thing bequeathed may be delayed beyond the
lifetime of one or more persons living at the testator’s death and the minority
of some person who shall be in existence at the expiration of that period and to
whom, if he attains full age, the thing bequeathed is to belong.
The rule against perpetuity relates to any property, whatever be its nature, and
whether is it movable or immovable. This rule against perpetuity is also envisaged
under section 14 of the Transfer of Property Act, 1882 (TOPA) and limits the
maximum time period beyond which property cannot be transferred. The rule
against perpetuity does not apply to charitable or religious endowments.

3.4.6. Onerous, Independent and Contingent Bequests
Onerous Bequests
Under section 122, when a bequest imposes an obligation, the legatee can
take nothing unless he accepts it fully. This is known as an onerous bequest.
Independent Bequests
Section 123 provides that where a will contains two separate and independent
bequests to the same person, the legatee is at liberty to accept one of them
and refuse the other, although the former may be beneficial and the latter
onerous.
Contingent Bequests
Section 124 deals with a bequest contingent upon a specified uncertain event,
where no time is mentioned for its occurrence. It provides that, in such a case, the
legacy cannot take effect, unless such event happens before the period when
the fund/property bequeathed is payable or distributable.
3.4.7. Specific & Demonstrative Legacy
Specific Legacy
Section 142 describes a specific legacy as a specific part of the testator’s
property (distinguished from all other parts of his property) bequeathed to a
legatee. The three essentials of a specific legacy are: (a) the property must form
part of the testator’s estate, (b) it must be identified and distinguished from
the remainder of the estate, and (c) there must be an intention to bequeath it to
a legatee.
Demonstrative Legacy
Section 150 describes a demonstrative legacy as one where a testator bequeaths
to a legatee a sum of money or a quantity of a commodity from a particular
fund or stock. A demonstrative legacy therefore is specific in terms of what the
legatee will receive but general in terms of the part of the testator’s estate from
which such bequest will be made. If the fund out of which it is directed to be paid,
fails, the legatee will not be deprived of the legacy, but will receive the deficiency
from the general assets or estate of the testator.
3.4.7. Specific & Demonstrative Legacy (Contd.)
Order of payment when legacy directed to be paid out of fund the subject of
Specific Legacy
Section 151 provides, “that where a portion of a fund is specifically bequeathed and
a legacy is directed to be paid out of the same fund, the portion specifically
bequeathed shall first be paid to the legatee, and the demonstrative legacy
shall be paid out of the residue of the fund and, so far as the residue shall be
deficient, out of the general assets of the testator.”
Hence, a specific bequest from the fund will first be distributed to the intended
legatee who is receiving the specific legacy and then the legatee receiving the
demonstrative legacy will receive his bequest, first from the fund and then
from the testator’s general estate.

3.5.1. General Rules of Intestacy
When dealing with intestacy, the ISA is divided into two parts, (i) Rules in case of
intestates other than Parsis, covered in Chapter II under sections 31 to 49; and (ii)
Special rules for Parsis specified under Chapter III vide sections 50 to 56.
The governing rules are as follows:
(a).If the intestate has left a widow and lineal descendants, then one-third goes to
the widow and balance two-thirds to the lineal descendants .
(b).If the intestate is survived by the widow and kindred, but no lineal
descendants, then one-half goes to the widow and the balance one-half to the
kindred .
(c).If there are no lineal descendants or kindred then, that the property goes
entirely to the surviving husband or wife.

3.5.2. Rules specific to Parsis dying intestate
In cases of intestate succession, there are specific sections carved out which are
applicable exclusively to Parsis, that is, section 50 to 56 contained in Chapter III of
Part V. Normal rules of intestacy such as consanguinity do not apply to
Parsis.
● General rules are contained in section 50 and are as follows:
(a). No distinction between a living child and a child in the womb who is
subsequently born alive;
(b). Lineal descendants of an intestate who have died in the lifetime of the
intestate without leaving a widow or widower or any lineal descendant
shall not be considered for intestate succession;
(c). A widow or widower of any relative of an intestate who has remarried
during the lifetime of an intestate shall not be considered and shall be
deemed to not exist at the time of the intestate’s death.
3.5.2. Rules specific to Parsis dying intestate (Contd.)
Section 51 deals with the division of property between widow/widower, children

and parents of the deceased. The general rule is that if a widow and heirs are
alive at the time of the death, property will be divided between the widow and
each child in equal shares. Further, if there is no widow/widower, the children
inherit in equal shares. In a case where the parents of the intestate are alive in
addition to children and/or widower, the property is divided so that each parent
receives a share equal to half the share of each child.

3.6. Chapter Review Questions
1. Who can make a will?

2. Who does the ISA govern?
3. What is a lapsed legacy?
4. What is the difference between bequest and inheritance?
5. What is the ‘rule against perpetuity’?
6. Explain the difference between a specific and demonstrative legacy with an
illustration.

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FPSB® Risk Management and

Copyright© 2019-2020 Financial Planning Standards Board

Copyright© 2019-2020 Financial Planning Standards Board

Upon completion of this section, students should be able to:

Copyright© 2019-2020 Financial Planning Standards Board

3-2 Identify the applicability and salient features of the ISA.

3-1 Understand common definitions.

The applicable/governing laws with respect to both testamentary and intestate

3-2 Identify the applicability and salient features of the ISA.

Animus means "intention to do something” and testandi “to make a will or

3-1 Understand common definitions.

3-2 Identify the applicability and salient features of the ISA.

Section 111 deals with survivorship in case of bequest to a described class. It

Exception.- If property is bequeathed to a class of persons described as standing in

3-2 Identify the applicability and salient features of the ISA.

3-2 Identify the applicability and salient features of the ISA.

3-1 Understand common definitions.

3-2 Identify the applicability and salient features of the ISA.

Section 51 deals with the division of property between widow/widower, children

3-2 Identify the applicability and salient features of the ISA.

1. Who can make a will?

Copyright© 2019-2020 Financial Planning Standards Board

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