FMLY 2 Unit 3

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Deemed to be University
UNIT II
Indian Succession Act 1925
3.1 General rules of Christian Inheritance

3.2 General rules of Parsi inheritance
3.3 Will and codicil
3.3.1 Persons capable of making wills
3.3.2 Formation of a will.
Excellence and Service

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Introduction:
The Indian Succession act, 1865, was originally introduced as the Indian Civil
Code,
The British Indian Government enacted the Indian Succession Act, 1865 which
was to apply in the case of Christians. the object was to prepare for India a
body of substantive law relating to testamentary and intestate succession.
This Act was later replaced by the Indian Succession Act, 1925, which
currently governs the inheritance in case of Christians. Certain customary
practices also influence the principles of inheritance in case of Christians and
have also been considered by the courts in India.
The latest amendment to Indian Succession Act 1925, was done in the year
2002.

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The term “succession” ordinarily means the transmission of the property and
the transmissible rights and obligations of the deceased. The property may be
ancestral or self-acquired property may devolves in two ways i.e
(a) By testamentary succession i.e., the deceased died by executing will
bequeathing his properties to specific heirs. The transmission of testamentary
succession, could be either be by way of a will or by the operation of law. and
(b) By intestate succession when the deceased died intestate without executing
Will or any deeds.
Every law of succession defines the rule of distribution of property in case a
person dies without making any Will. The property of the deceased person
devolves upon the heirs.
The law on intestate succession for different communities in India is as under:
1. Succession for Hindus:
For Hindus, Sikhs, Buddhists and Jains, the laws relating to the testamentary
succession are applicable as per the Indian Succession Act, 1925. However, the
laws relating to the intestate succession are applicable as per
the Hindu Succession Act, 1956.
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2. Succession for Muslims: ( Muslim Law is not codified and is different for
Shias and for Sunnis). In the case of Muslims, the Indian Succession Act,
1925 is not applicable to both the testamentary and intestate succession.
However, certain sections of this Act are applicable to testamentary succession
by Muslims also. The law in relation to making of wills by Muslims is
governed by the relevant Muslim Shariat Law as applicable both to the Shias
and the Sunnis. In their case, the succession is on the basis of the Quran and
other sources.
3. Succession for Christian, Parsis and Jew: For Christians, Parsis, Jews and
any community other than Hindus, Muslims, Sikhs, Buddhists and Jains,
Indian Succession Act, 1925 is Applicable to both testamentary and intestate
succession.
Succession laws in India had their origin in religion. Thus, we find that in the
late 19th century, succession was determined on the basis of customary
practices and religious laws. There were, therefore, specific rules within the
scheme of religious laws and texts for the devolution of proprietary rights for
Hindus and Muslims. While these rules were ambiguous due to conflicting
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interpretations of religious texts, regional variations in practice, and synergetic
influences of cultural commixture, the fact still remained that there were
specific criteria on the basis of which devolution and succession could be
governed.
Applicability of the Indian Succession Act, 1925:
This Act is applicable to intestate and testamentary succession.
The object of the Act is to consolidate the law applicable to intestate and
testamentary succession .
Scheme of the Act:
The Act consists of 11 parts, 391 sections and 7 schedules. The Act has been
divided into eleven parts and some of the parts have been sub-divided into
chapters.
Part-I relates to preliminary dealing with definitions and power of the State
Government to exempt certain classes of persons from the operation of the Act.
Part-II lays down the law relating to domicile. The concept is of importance,
because the application of the Act to movable property of a person depends

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thereon. However, this part, does not apply if the deceased was a Hindu,
Muhammadan, Buddhist, Sikh or Jains.
Part-III states the effect of marriage on the rights of succession.
Part-IV treats of the concept of consanguinity – against a concept of
importance for the purposes of intestate succession.
Part-V enacts the provisions relating to the intestate succession. It deals with
the order of intestate succession. As the present work largely involves issues of
intestate succession,
Part-V of the Act constitutes the main concern of the work that follows.
Part-VI, which is the longest part of the Act and comprises twenty-three
chapters and deals with testamentary succession though, may constitute the
most important portion of the Act, though not very relevant from the
perspective of present study. However, continuing about the general scheme of
the Act,
Part-VII deals with the protection of the property of the deceased and
Part-VIII with representative title to the property of the deceased.

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Part-IX relates to probate, letter of administration and administration of the
assets of the deceased.
Part-X regulates the grant of succession certificate and
Part XI deals with miscellaneous provisions.

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The Christian Law of Inheritance
The religion of the deceased determines the Succession to his estate.
Succession, in brief, deals with how the property of a deceased person
devolves on his heirs. This property may be ancestral or self acquired and may
devolve in two ways.
1. By Testamentary Succession i.e., when the deceased has left a will
bequeathing his property to specific heirs.
1. Testamentary Succession among Indian Christians:
A will is the expression by a person of wishes which he intends to take effect
only at his death. In order to make a valid will, a testator must have a
testamentary intention to which he gives deliberate expression to take effect
only at his death.
As said, the Testamentary Succession is dealt with under Part VI of Indian
Succession Act, 1925. Part VI of the Act has Sections 57 to 191, that
comprehensively deal with all issues connected with wills and codicils and the
making and enforcing of the same, capacity and formalities to make a will.

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According to Section 59, every person of sound mind, not being a minor may
dispose of his property by will. Married women, deaf/dumb/blind persons who
are not there by incapacitated to make a will are all entitled to disposing their
property by will. Soundness of mind and freedom from intoxication or any
illness that render a person incapable of knowing what he is doing are laid
down as pre-requisites to the process.
2. By Intestate Succession: when the deceased has not left a will whereby
the law governing the deceased (according to his religion) steps in, and
determines how his estate will devolve.
Section 30 of the Indian Succession Act, 1925 defines Intestate Succession
thus, a person is deemed to die intestate in respect of all property of which he
has not made a testamentary dispossession which is capable of taking effect.
Thus, any property which has not already been bequeathed or allocated as per
legal process, will, upon the death of the owner, in so far, as he is an Indian
Christian, devolve as per the Rules . The rules relating to Intestate Succession
among Christians governed under Sections 29 to 49 in Part V of Indian
Succession Act 1925. But if there is a will executed by the deceased, the
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General Law as contained in Sections 57 to 391 would apply
There is a partial intestacy where the deceased effectively dispossess of
some, but not all, of the beneficial interest in his property by will.
The Concept of Succession :

Section 2(d) of the Act defines “Indian Christian” means, a native of India
who is or in good faith claims to be, of unmixed Asiatic Descent and who
professes any form of the Christian Religion.
It clarified in the case of Abraham v. Abraham, where the scope of this
definition of an ‘Indian Christian’ was delineated with regard to its actual
working. This case laid down that a Hindu who has converted to Christianity
shall not be governed by Hindu law (customary or otherwise) anymore, and
any continuing obligatory force that the Hindu law may have exercised upon
him stands renounced. However, he was clearly given the option to permit the
old law to continue to have an effect on him, despite having converted out of
the old religion into the new one.
In 1865, the original Indian Succession Act was passed and a new question
arose as to whether, even under the provisions of this new Act, the convert
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could elect to be governed by the old law. In the case of Kamawati v. Digbijoy,
thereafter it was held by the Privy Council that the old law ceases to be
applicable with regard to inheritance i.e. succession. Thereafter in a recent
2001 judgement, the Allahabad High Court reiterated that Hindu converts to
Christianity will be bound solely by the succession laws governing Christians,
inclusive of the Indian Succession Act, 1925, and it will not be possible for
them to elect to be governed by the old law in this or related matters.
Heirs Recognized for Christians: -
1 Spouse
2 Lineal descendants
3 Kindred Indian Succession Act
As per Section 29 - This Part does not apply to any intestacy occurring before
the first day of January, 1866, or to the property of any Hindu, Buddhist,
Mohammedan or Sikh.
Section 29, Provides that the whole of this part applies to Europeans,
Christians, Jews and other persons professing Christian religion, domiciled in
India. It also applies to persons married under the Special Marriage Act 1954.
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Rules for Christian Inheritance:
All property owned by an individual, irrespective of the mode of acquisition,
is treated as the individuals’ self-acquired property and is free to dispose-off
the same in any manner during his lifetime. In case the property has not been
disposed-off by way of will, then the same shall devolve upon his / her
successors and heirs upon his death.
Descendants & Rules of Inheritance :-

The laws of inheritance applicable to Christians are same for both genders. The
property of a person dying intestate is bequeathed to the spouse of the
deceased , or upon those who are kindred of the person deceased. Chapter II of
the ISA provides for the order and the concerned rules for the devolution of the
estate and the share to be allotted to the heirs. The ISA provides that a widow
is not entitled to the property if by a valid contract made before the marriage
she has been explicitly excluded from the distributive share of her husband’s
estate.

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The term ‘lineal descendants’, as described under the ISA, includes children or
children’s children and only those born out of a lawful marriage, thereby
excluding relations such as daughter’s illegitimate son or a son’s illegitimate
daughter or any other illegitimate issue as such illegitimate children are not
considered children by the provisions of ISA.
The Procedure of Inheritance is According to Section 33 of the ISA 1925 are:
1. If an intestate has left a widow and also lineal descendants, 1/3rd of the
estate shall devolve upon the widow and the remaining 2/3rd shall go to
the lineal descendants.
2. If the intestate has left behind a widow and does not have any lineal
descendants, but has left behind persons who are kindred to him, the
property would be divided into two halves, half will go to the widow of
the intestate and the other half would divulge to the kindred. However, in
case the intestate has left no kindred, the whole property would be
inherited by the widow.

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3. The lineal descendants take 2/3 of the estate in the presence of only widow
or widower . Otherwise they take the whole of the estate. If they are of equal
degree they share equally, then the division is per capita and the grand
children of the predeceased child will divide according to per stirpes.
For example , if there are two children and three grand children by a
predeceased child, there will be 3 shares, each child taking one share and three
grand children taking the share of their deceased parent.
A daughter’s illegitimate son or a son’s illegitimate daughter or other
illegitimate issue cannot be said to be a “Lineal Descendant”. An illegitimate
child is not a child within the meaning of the act. Therefore, such a child has
no share in the property of the parents. But in Jane Anthony Vs. Siyath 2008 ,
recognized the right of illegitimate child under Indian Succession Act.
4 If he has left none who are of kindred to him, the whole of his property
shall belong to his widow.
5 In cases where an intestate has no child, but only has grandchildren and no
other remote descendent, the property shall go equally to the all the
grandchildren.
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Section 33A. Special provision where intestate has left widow and no lineal
descendants.—
(1) Where the intestate has left a widow but no lineal descendants and the net
value of his property does not exceed five thousand rupees, the whole of
his property shall belong to the widow.
(2) Where the net value of the property exceeds the sum of five thousand
rupees, the widow shall be entitled to five thousand rupees thereof and
shall have a charge upon the whole of such property for such sum of five
thousand rupees, with interest thereon from the date of the death of the
intestate at 4 per cent. per annum until payment. (3) The provision for the
widow made by this section shall be in. addition and without prejudice to
her interest and share in the residue of the estate of such intestate
remaining after payment of the said sum of five thousand rupees with
interest as aforesaid, and such residue shall be distributed in accordance
with the provisions of section 33 as if it were the whole of such intestate’s
property.

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The net value of the property shall be ascertained by deducting from the gross
value thereof all debts, and all funeral and administration expenses of the
intestate, and all other lawful liabilities and charges to which the property shall
be subject.
According to Section 46. Where intestate’s father dead, but his mother living
and no brother, sister, nephew or niece.—If the intestate’s father is dead, but
the intestate’s mother is living, and there is neither brother, nor sister, nor child
of any brother or sister of the intestate, the property shall belong to the mother.
According to 47. Where intestate has left neither lineal descendant, nor father,
nor mother, the property shall be divided equally between his brothers and
sisters and the child or children of such of them as may have died before him,
such children (if more than one) taking in equal shares only the shares which
their respective parents would have taken if living at the intestate’s death.

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According to 48. Where intestate has left neither lineal descendant, nor parent,
nor brother, nor sister.— Where the intestate has left neither lineal descendant,
nor parent, nor brother, nor sister, his property shall be divided equally among
those of his relatives who are in the nearest degree of kindred to him.
Illustrations :
(i) A, the intestate, has left a grandfather, and a grandmother and no other
relative standing in the same or a nearer degree of kindred to him. They, being
in the second degree, will be entitled to the property in equal shares, exclusive
of any uncle or aunt of the intestate, uncles and aunts being only in the third
degree.
(ii) A, the intestate, has left a great-grandfather, or a great-grandmother, and
uncles and aunts, and no other relative standing in the same or a nearer degree
of kindred to him. All of these being in the third degree will take equal shares.
(iii) A, the intestate, left a great-grandfather, an uncle and a nephew, but no
relative standing in a nearer degree of kindred to him. All of these being in the
third degree will take equal shares.

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5. A husband is not entitled to inherit the property of the divorced wife and in
case of judicial separation, the property of the wife would devolve upon her
legal heirs as if the husband is already divorced.
6 Also, a daughter-in-law has no right of succession to the estate of her
intestate father-in-law.
7 In case of a Christian daughter, there exist no pre-existing right in the
family property and her right generally arises when her parents die intestate.
9 In the case of, Re. Rt. Rev. Casmir Gnanadicker, Archbishop of
Madras ,AIR 1990, It was held that, An heir is not disqualified because
she becomes a nun. Nuns and Bishops are governed by ISA,1925.
10 Widow: The Rules as follows:
(a) If the deceased has left a widow but no lineal descendants or collaterals,
she takes the entire estate.
(b) if he has left no lineal descendants , but there are ascendants or collaterals
she takes one half.

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(c) If there are lineal descendants, she takes one third of the property.
A widow may be excluded from inheritance by a valid contract made before
the marriage
(11) Father:
Section 42: Father will exclude other kindred from inheritance.
When there are no lineal descendants, after deducting the share of the widow
(1/2 share) the remaining 1/3 share goes to the father.
(12) Mother:
If the father is dead, the mother takes the whole of the property(after
deducting widow’s half share) when there are no brothers and sisters or their
children.
(13) Brothers, sisters and their children: the rules are:
(a) If the mother also dead, brothers, sisters and their children take the
property. In such cases, each living brother and sister takes a share and the
children of pre-deceased brothers and sisters take the shares, which would
have been allotted to their parents, if they had been alive .
(b) Even if the mother is alive, she cannot exclude brothers, sisters and their
children wholly, she is allotted one share and the distribution is effected among
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the brothers, sisters and their children as already mentioned.
(14) Nearest Kin: In the absence of lineal descendants, parents, brothers and
sisters, the relatives who are in the nearest degree of kindred share equally If
there is a widow, then after deducting the widow’s share .
(15) Illegitimate birth are not recognized as Kindred under the Act. Kindred
does not include relation by affinity such as mother-in-law or step mother or
step father. Thus, a step father or a step mother has no legal right of Succession
to the property of his or her step children. The position is the same in the case
of a father-in-law as well.
(16)Though Christian law does not statutorily provided for adoption. It has
been held by the Kerala High Court in Philips Alfred Alvin v. Y.J.
Gonsalvis,1999, that Christian law recognizes adoption and the adoptive
child will have the same rights as that of natural born son.
(17) If there are no heirs, whatsoever to the estate, the Doctrine of Escheat can
be invoked by the Government, where upon the estate of the deceased will
revert to State.

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More Rules of Inheritance among Christians:
1 It is interesting to note that the law for Christians does not make any
distinction between relations through the father or the mother. If the
relations from the paternal and maternal sides are equally related to the
intestate, they are all entitled to succeed and will take equal share among
themselves.
2 Also, no distinction is made between full-blood/half-blood/uterine relations;
and a posthumous child is treated as a child who was present when the
intestate died, so long as the child has been born alive and was in the womb
when the intestate died.
3 Christian law does not recognize children born without marriage ; it only
deals with legitimate marriages.
4 Furthermore it does not recognize polygamous marriages either.

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5 A Hindu Converts to Christianity will be bound solely by the Succession
laws governing Christians, inclusive of the Indian Succession Act, 1925.
The religion of the heirs will not act as estoppel with regard to succession
even the Hindu father of a son who had converted to Christianity was held
entitled to inherit from him after his death. When a Hindu convert to
Christianity dies intestate, it is the father, who succeeds to the property.
The religious faith of the father is immaterial for the purpose of
succession, it is that the deceased should have belonged to Christian
Religion on the date of his death .
6 A posthumous child is treated as a lawful successor, as long as he is born
alive and was in the womb of the mother when the intestate died.
247th law commission report in order to grant equal rights of inheritance to
mother recommended amendments from Section 41 to 48. It also
recommended changing the word ‘father’ to parents so that the parents may
inherit separately and the siblings of the intestate may inherit only in the
absence of the parents and not just in the absence of the father.
Kindly Note : Problems are given in separate sheets.
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II Consanguinity (Chapter two of the Act):
(a) Lineal Consanguinity: It means blood relationship. Such a relationship
exists between two persons when they are descended one from the other.
This kind of consanguinity , which subsists between two persons by virtue
of other being in a direct line of ascent or descent , one from the other is
known as lineal consanguinity. It can be one degree or two or three , and
so, degrees of descent or ascent .
(b) Collateral Consanguinity: In collateral consanguinity, two persons who
are not in direct line of ascent or descent , have a common ancestor. Thus
two brother are related by collateral consanguinity. The degree of kindred
is ascertained by first counting the number of degrees upward towards the
common ancestor and then downwards to the collateral relative concerned.
And the word kindred is only a synonym for consanguinity.

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Explain in the light of relevant provisions, the distribution of a Christian
intestate's property in the following situations –
a) A dies intestate, survived by his mother and two brothers of the full blood,
John and Henry, and a sister Mary, who is the daughter of his mother but not of
his father.
b) A, the intestate, leaves his mother, his brothers John and Henry, and also one
child of a deceased sister, Mary, and two children of George, a deceased
brother of the half blood who was the son of his father but not of his mother.
8 A has three children and no more- John, Mary and Henry. They all die
before their father, John leaving two children, Mary three and Henry four.
Afterwards A dies intestate, leaving his grandchildren and no descendant of
any decreased grandchild. Provide the share distribution of the heirs in the
light of the relevant provision of the Indian Succession Act, 1925.

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Parsi intestate Succession
Prior to 1837, the law applicable to Parsis and their property was the English
Common Law subject to certain exceptions as to marriage and bigamy. The
English rule of Primogeniture was applicable. An act was passed in 1837,
which relieved Parsis from the rule of Primogeniture. As per this Act, 1/3rd
went to the widow and the rest to the children and descendants equally. The
Parsis made a representation to the legislative council in order to be protected
from:
1 The English statute of distribution in case of intestacy
2 From the English common law relating to the husband and wife by virtue of
which the wife could exercise no independent disposing control during the life
of her husband over any property including her own.
The Parsi Intestate Succession Act 1837 remained in force up to 1925.
When the Indian Succession Act of 1925 was enacted, the Parsi Intestate
Succession Act 1836 was verbatim incorporated in Chapter III of the new act.
There was an amendment in 1939 to improve the position of the widow and

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the daughter and widows of lineal descendants among others.
The term ‘Parsi’ is not defined in the Indian Succession Act,1925. However, it
was held by the Bombay high Court that the succession laws codified in the
Act for ‘Parsi’ would not only cover the Parsi Zoroastrians but also the
Zoroastrians of Iran.
● After the enactment of the Indian Succession Act,1925 Parsi were made to
be governed by this codified law. There is a separate scheme of succession
for Parsi codified under Sections 50 to 56 of the Act for Intestate succession
for Parsi.
● In the case of testamentary succession for Parsi, where there is a will
executed by the deceased, the general provisions under Sections 57 to 391
of the Indian Succession Act, 1925 apply.

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Section 50: General principles relating to intestate succession:
For the purpose of intestate succession among Parsis-
(a) there is no distinction between those who were actually born in the lifetime
of a person ceased and those who at the date of his death were only conceived
in the womb, but who have been subsequently born alive;
(b) a lineal descendant of an intestate who has died in the lifetime of the
intestate without leaving a widow or widower or any lineal descendant or a
widow of any lineal descendant shall not be taken into account in determining
the manner in which the property of which the intestate has died intestate shall
be divided; and
(c) where a widow of any relative of an intestate has married again in the
lifetime of the intestate, she shall not be entitled to receive any share of the
property of which the intestate has died intestate, and she shall be deemed not
to be existing at the intestate's death.
I Section 51: Division of Intestate property among widow , widower,
children and parents:
(1) Subject to the provisions of sub-section(2), the property of which a Parsi
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dies intestate shall been divided:
(a)- When intestate leaves behind a widow or widower as well as children,
distribution of shares will be equal.
For example, widow + 3 children will result in each receiving ¼ share.
(b)- When intestate leaves behind children but no widow or widower,
distribution of shares will still be equal. For example, 3 children will result in
1/3 share.
(2) - When intestate leaves behind one or both parents in addition to children
or widow or widower and children then the property of the Paris dying
intestate shall be so divided that the parent or each of the parent shall receive a
share equal to half of the share of each child.
For example, if there are 4 children, no widow and 1 mother. Each child will
receive ¼ and the mother will receive 1/8 share.
To be noted that,
(a) Parents get a share only when the son dies and not the daughter. And
Parents does not include stepfather and stepmother.

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(b) The Amendment Act of 1991 combined the provisions for succession to
both male and female Parsi intestates. The separate provision for female Parsi
intestates under Section52 stands repealed by Amendment Act of 1991.
II Section 53 - Division of share of predeceased child leaving behind lineal
descendants :
If the child of the intestate dies during the lifetime of the intestate leaving
behind lineal descendants, division will be as follows:
( a) If the child is a son, the widow and children will take shares in
accordance with the provisions of the chapter as if he has died immediately
after the intestate’s death.
(a) If such deceased child was a daughter, her share shall be divided equally
among her children.
(b) If any child of such deceased child has died during the lifetime of the
intestate, the share which he or she would have taken, if living at the
intestate’s death, shall be divided in lime manner in accordance with clause
(a) or clause (b) as the case may be;

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III Section 54: Division of property where Intestate leaves no lineal

descendant but leaves a widow or widower or widow or widower of any lineal
descendant: Where a Parsi dies without leaving any lineal descendant but
leaving a widow or widower or a widow or widower of a lineal descendant ,
the property of which the intestate dies intestate shall be divided in accordance
with the following rules, namely:
(a)- If there is widow or widower, but no widow or widower of lineal
descendant, then widow or widower will take half of said property. The
remaining half share goes to the people mentioned in Schedule II Part I.
(b)- If widow or widower and also widow or widower of lineal descendants
are alive, widow or widower or widower receive 1/3 and 1/3 will go to widow
or widower of lineal descendant. The remaining 1/3 will go to people
mentioned in Schedule II Part I.
(c)- If intestate leaves no widow or widower, but leaves one widow or
widower of lineal descendant, then this widow or widower will receive 1/3 and
the remaining 2/3 will go to people mentioned in Schedule II Part I. If there is
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more than one widow or widower of the lineal descendant (and no widow or
widower of his own), then 2/3 to the widow or widower of the Lineal
Descendant and 1/3 to people mentioned in Schedule II Part I.
The residue after the division specified in clause (a) , or clause (b) or clause
( c) has been made shall distributed among the relatives of the intestate in the
order specified in Part I of Schedule II: and the next –of kin standing first in
Part I of that Schedule shall be preferred to those standing second, the second
to the third and so on in succession, provided that the property shall be so
distributed that each male and female standing in the same degree of
propinquity shall receive equal shares.
(e) If there are no relatives entitled to the residue under clause (d), the whole
of the residue shall be distributed in proportion to the shares specified
among the persons entitled to receive shares under this Section.
The effect of Section 53(c) and (d) is that in the case of a child of a pre-
deceased child dying in the lifetime of the intestate leaving behind heirs then
the division of property is Per Stirpes and not Per Capita.
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(d)- Residue after division specified in (a), (b), (c) will go to people mentioned
in Schedule II Part I.
(e)- if no relative, then to nearest kindred.
Section 55- When the intestate, widow or widower and widow and widower
of Lineal Descendant cease to exist, property devolves to relatives mentioned
in Schedule II Part I
Section 56- When everyone, including relatives, are dead. Then, property will
devolve to the kin of nearest kindred.
In Jehangir v Pirozbhai- X had a married daughter. After death of daughter,
Husband H remarried. After subsequent death of father-in-law, H claimed
share according to 54(c) as he is widower. The earlier rule did not discriminate
between son’s widow or own widow. Previously, if there was children, the
widower inherited freely. In this case, the rule was completely changed, and
now widowers do not inherit the property of father-in-law when children of
pre-deceased daughter is there. And if widower is remarried, he will not inherit
at all.

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SCHEDULE II PART I
● Father and Mother

● Brothers and sisters (apart from half brother and sister) and the lineal
descendants of those who predeceased the intestate
● Paternal and maternal grandparents
● Children of paternal and maternal grandparents and the lineal descendants
of those who predeceased the intestate
● Paternal and maternal grandparents’ parents
● Paternal and maternal grandparents’ parents’ children and the lineal
descendants of those who predeceased the intestate.
● Widows of brothers/half-brothers and widowers of sisters/half-sisters
● Paternal or maternal grandparents’ children’s widows/widowers –
● Widows/widowers of deceased lineal descendants of the intestate who have
not married again before the death of the intestate .
( the formula for solving Parsi Intestate Succession and the problems on
succession were discussed and practiced in the class)
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Will
TESTEMENTARY SUCCESSION [PART VI] [SECTION 57-66]
A will is a legal declaration for a voluntary posthumous disposition of

property. The law relating to wills are found in the Indian Succession Act,
1925 where Section 58 states the law therein applies to everyone except
Muslims.
● Disposition of property which comes into effect after death of the testator.
● Codicil- Changes/amendments made to a will, in order to modify or revoke
part of the will.
● Probate- A Court order that authorizes an executer/administrator to handle
the administrative matters of a deceased person’s collective estate.
● Letter of Administration- A beneficiary makes an application to the court
for obtaining the succession certificate so as to manage properties of the
intestate. [Exact same as Probate, but in case of intestate succession.]
● For the purposes of immovable property, the country of nationality’s laws
will govern. For purposes of movable property, country of domicile’s laws
will govern.
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Groos, Groos v. Groos (1915)- A Dutch woman, domiciled in England, made
a will making her husband to inherit her movable property except for the
legitimate portion to which her descendants were entitled. As per Dutch law, ¾
of her property would be considered as legitimate property and would go to
her children. As per English law, NOTHING would be considered as legitimate
property to devolve to children. Since she was domiciled in England, the laws
of England would apply and children would be entitled to none of the movable
property.
The essential characteristics of a will are:
There must be an intention for the testament to take effect after the testator’s
death;
It is the a legal declaration of intention with respect to property . The
declaration with respect to the property must involve a disposition of property
and not the mere appointment of a successor;
A will can be altered or revoked by the testator at any point of time in his
lifetime. This can be done means of an instrument called a codicil (This means
that a contract holding a particular will to be a last will or preventing it from
being revocable is invalid).
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A testator can chose to appoint an executor (a person to whom the
responsibility of the execution of the will is assigned) failing which an
administrator can be appointed by a competent authority (to administer the
deceased persons estate).
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions
of the Indian Succession Act, 1925. However Mohammedan are not governed
by the Indian Succession Act, 1925 and they can dispose their property
according to Muslim Personal Law, that is The Shariat Act of 1937.
Who can make a Will?
● Every person who is of sound mind and is not a minor can make a will.
● A person who is ordinarily insane may make a will during an interval in
which he is of sound mind.
● No person can make a will while he is in such a state of mind, whether
arising from intoxication or from illness or from any other cause, that he
does not know what he is doing.

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● Married woman can make Will to alienate her property.
● Deaf/ Dumb/ Blind can make Will since they are not incapacitated, if they
are able to know what they are doing. Before as per the Indian Lunacy Act
1912, Deaf Dumb And Blind persons were incapable of making a valid
will. But after developing advanced methods of educating them, this
previous position no longer holds.
● An insane person who is occasionally of sound mind can make Will during
interval where he is of sound mind.
The Mental Health Act of 1987 repealed the Indian Lunacy Act of 1912
and the word “Lunatic” was replaced by “mentally ill person”. A mentally
ill person is qualified to make a Will during periods of lucidity as long as
she or he understands the nature and consequences of their actions.
According to Section 61- Fraud and Coercion induced Wills are void.
of fraud can be understood through the Indian Contract Act. As per judicial
precedent, even misrepresentation and mistake have been read into Section 61
as grounds for invalidating a Will.

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It means that persistence to such a degree so as to take away free agency
from the testator. This persistence must be such that the testator is too weak to
resist and the act of the testator is no longer considered a free act of a capable
person.
Mode of Execution of A Unprivileged Will: Section 63 of the Indian

Succession Act required that the execution of a will should comply with the
following rules:
● Every person, not being a soldier employed in an expedition or engaged in
warfare, or an airman so employed or engaged, or a marine at sea shall
execute his will accordingly.
● He shall sign or fix his mark to the will or it shall be signed by some other
person in his presence and by his direction.
● The signature or mark should be so placed that it shall appear that it was
intended thereby to give effect to the writing as a will
● The will shall be attested by two or more witnesses, each of whom has seen
the testator sign or affix his mark on the will or has seen some other person
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sign the will, in the presence and by the direction of the testator or has received
from the testator a personal acknowledgement of his signature or
mark, or of the signature such other person;
Each of the witnesses shall sign the will in the presence of the testator, but it
shall not be necessary that more than one witnesses be present at the same
time, and no particular form of attestation is necessary.
Beneficiary can not the attesting witness.
In Nagulapati Lakshmamma v. Mupparaju Subbaish, 1998, the Supreme Court

opined that section 63 of the Indian Succession Act, 1925 makes a clear
distinction between testator and attestors. The Testator may sign himself or put
a mark by himself or direct some other person to sign on his behalf and in his
presence. Such privilege or power is not extended to an attesting witness.

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Subject matter of a Will:
Any movable or immovable property can be disposed of by a will by its
owner.
Any person capable of holding property can be devisee under a will and
therefore a minor, lunatic, a corporation, a Hindu deity or any other juristic
person can be a devisee.
Revocation of a will: (Section 70)
● A will can be revoked in the following manner
By execution of a subsequent will. When a will is revoked by a subsequent
will, the will so revoked will have no operation.
● By some writing and declaring an intention to revoke the will.
By burning of the will.
● By tearing of the will.
● By destroying the will.
● In Marsland Lloyd Bank Ltd. V Marsland- A man had a wife. They got
divorced and the man remarried. However, the man did not change the
Will and did not object to the first wife inheriting. The first wife died first.

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Subsequently the man died. Second wife went to Court, and claimed that only
“wife will inherit” was mentioned and it was not mentioned which wife. The
man had opportunity to alter the will. But since he did not, it is implied that the
Will stands revoked.
Loss of a Will:
If a will is lost it will be presumed to be revoked. If the will was seen with the
testator, but could not be found after the death testator, it will be presumed that
the same has been revoked by the testator by destroying the same.
Registration
The registration of a will is not compulsory. However, the testator may register
the will or deposit the will in a sealed cover with the Registrar. There is no
time limit for registration.
Void wills:
1. A will which does not express any definite intention is void for
uncertainty according section 89.
2. A will becomes void wen it is properly revoked.
3. A will becomes void for want of testamentary capacity.

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Privileged wills (Section 65 and 66)
A Privileged will be a will written or orally said by a testator when he is:
1. Soldier employed in an expedition or engaged in actual warfare.
2. An airman employed or engaged on expedition or warfare and
3. A mariner at sea.
then he can dispose of his property by will in the manner prescribed under
S.66. He should have completed the age of 18 years,
- This includes Defence personnel include any medical officers and cooks’
cleaners who go along the expedition.
When a testator is anyone else other than above, then the will is unprivileged
will, which is already discuss.
The Principles governing the making of a privileged will are as follows:
1. It may be made orally by declaring the testamentary intention before two

witnesses present at the same time. Such will becomes void after one month if
testator is still alive and has ceased to be entitled to make a privileged will.
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2. If it is handwritten wholly by the testator, it need not be signed or attested.

3. If written by other and signed by testator, witness is not required.
4. Even if the instrument was not written by or signed by the testator, if it
was written by his directions or recognised by him as his will, it shall be
deemed to be his will.
6..If written by someone else, not signed by testator, deemed to be will if
intention is proved.
7. Instructions in the writing of the testator for preparing the will are treated as
his will even if he had died before the instructions are carried out.
8. If execution not according to testators wish then will is still valid if reasons
for non-execution is legitimate. .
9. If word of mouth, 2 witness at same time, it is a valid will. If such oral
instructions have been reduced to writings in his lifetime though not in his
presence and though not read out to him , the instructions are deemed to
constitute a valid will.
10. Privilege will expire in one month after losing the privilege.
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Codicil
a codicil is an amendment to an existing will. Creating a new will when
circumstances change, or when the individual changes his or her mind, can be
expensive. If the desired change or addition is not complex, stating the new
wishes in a codicil is the easiest, and least expensive, way to update a will.
Codicils are often used to add or revoke certain provisions of an existing will.
All of the legal requirements for making an original will apply to the creation
of codicils. To explore this concept, consider the following codicil definition.
A supplement, amendment, addition, or explanation added to an existing Last

Will and Testament.
These changes may include adding or deleting gifts, or changing the named
personal representative. When major changes are needed, such as adding a new
spouse as the beneficiary, or eliminating a previously named beneficiary,
creating a new will is recommended. In order for a person to create a will or a
codicil, he or she must be mentally competent.

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Requirements for a Codicil to a Will
A codicil, by definition, does not replace the original executed will. Rather, it
acts as an amendment, and it must meet certain legal requirements. For
example, a codicil must contain the signature of the testator, as well as the
signatures of two or three witnesses who are not parties to the will. While in
many states, all signatures must be made in front of a notary public, other
states allow the testator to sign before a notary public without witnesses.
These strict signature requirements are for the purpose of preventing
unauthorized people from making changes to a will. When a codicil to a will is
created, it should be placed with the original document.
Specimen for Codicil
Codicil to the Last Will and Testament of

--------------------------------------------------------------------
(Testator’s Name)
CHRIST
, residing at ---------------------(Testator’s Address---------------- (City),
---------------(State), being of sound mind, declare this Codicil to my Last Will
and Testament (“Will”) dated ------------------------, effective as of today,
-------------------------- (Include the date the codicil should go into effect)
ITEM I
Article --------------------(section to be changed) of my Last Will and Testament
shall be modified to read:
ITEM II
Article---------------------- of my Last Will and Testament is removed in its

entirety.
ITEM III
Article----------------Last Will and Testament shall be added and will read:

-------------------------------------------------------
Signature of the Testator

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CHRIST

3.1 General rules of Christian Inheritance

Excellence and Service

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The Concept of Succession :

Descendants & Rules of Inheritance :-

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Excellence and Service

Excellence and Service

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III Section 54: Division of property where Intestate leaves no lineal

Excellence and Service

● Father and Mother

A will is a legal declaration for a voluntary posthumous disposition of

Excellence and Service

Excellence and Service

Mode of Execution of A Unprivileged Will: Section 63 of the Indian

In Nagulapati Lakshmamma v. Mupparaju Subbaish, 1998, the Supreme Court

Excellence and Service

Excellence and Service

The Principles governing the making of a privileged will are as follows:

1. It may be made orally by declaring the testamentary intention before two

2. If it is handwritten wholly by the testator, it need not be signed or attested.

A supplement, amendment, addition, or explanation added to an existing Last

Excellence and Service

Specimen for Codicil

Codicil to the Last Will and Testament of

Article---------------------- of my Last Will and Testament is removed in its

Article----------------Last Will and Testament shall be added and will read:

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