Project Family Law
Content
INTRODUCTION Succession Succession is a derivative of the word succeed (to inherit) and refers to the order in whic which h or the the co cond ndit itio ions ns unde underr whic which h on one e pers person on afte afterr anot anothe herr succ succee eeds ds to a property. It implies the act of succeeding or following, as of events, objects, places in a series, the transmission or passing of rights from one to another. In every system of law provision has to be made for a readjustment of things or goods on the the deat death h of the the huma human n bein beings gs who who owne owned d and and enjo enjoye yed d them them.. The The rule rules s of succession are, in modern systems of law, subject to many rules. There can be no doubt doubt,, howeve howeverr, that that these these rules rules prima primaril rily y are the chara characte cteris ristic tics s of the so socia ciall conditions in which that individual lived. They represent the view of society as to what ought to be the normal course of succession in the readjustment of property after the death of a citizen. lac lac!" !"s s #a #aw w $ict $ictio iona nary ry defi define nes s inhe inheri rita tanc nce e as %rec %recei eipt pt of a prop proper erty ty from from an ancestor under the laws of intestacy& i.e. %by be'uest or device.& “the law of inheritance comprises of rules which govern devolution of property, on the death of the person, upon other persons solely on account of their relationship with the former.” 1 Succession Succession can be of types testate and intestate. Inte Intest stat ate e Su Succ cces essi sion on is used used to deno denote te the the laws laws rela relati ting ng to inhe inheri rita tanc nce. e. The The property of a person , on his or her death, in absence of instructions left by him or her with respect to its devolution, devolves in accordance with the law of intestate succession to which the deceased was subject to at the time or his or her death. Testamentary succession on the other hand refers to devolution of property through a test testam amen entt or a *ill *ill.. + *ill *ill that that is ca capa pabl ble e of ta!i ta!ing ng effe effect ct in law law gove govern rns s succession succession to the property of a person after his or her death in accordance with the rules laid down in the laws governing testamentary succession to the property of a person to which he or she was subject at the time of his or her death. $iversity prevails in the laws of testamentary succession also, yet it is not as varied as in case of laws of inheritance or intestate succession.
WILLS – MEANING AND NEED “The instincts and affections of mankind, in the vast majority of instances, WI lead man to make provisions for those who are nearest to them in kindred and who in life have !een the o!jects of their affections.” A Will is a document which ensures that your wishes with respect to your assets and property are followed after your death. There ften arises problems and complications
when a person dies without a *ill. + will or a testament is a
declaration of the intention of the person ma!ing it with regard to the matters which he wishes to ta!e effect upon or after his death while a codicil is a document which alters any one or more provisions in the will or adds any provision in the will or rectifies the mista!es, if any, in the will. It is supplemental to and considered as anne-ure to a will previously made. The concept of wills emanated from the right of absolute ownership in ones property. *hen a property holder died, leaving heirs and no will, it lead to unnecessary family s'uabbles. *ills and codicils came to the rescue and aided in a fair distribution of property, as per the prerogative of the e-ecuter of the will. *ills were a medium to distribute the property ac'uired by the testator in his or her life through personal preferences and minimal interference of law (as in case of /uslim 0ersonal #aw which allows only one1third of the testators property to be divested through wills). S. S.(h) of Indian Succession +ct, 234 provides that *ill means the legal declaration of the intention of a person with respect to his property, which he desires to ta!e effect after his death *ill has been defined in 5orpus 6uris Secundum as + 7*ill" is the legal declaration of a man"s intention, which he wills to be performed after his death, or an instrument by which a person ma!es a disposition of his property to ta!e effect after his death. + person can ensure as to how his property should devolve and to whom it shall devolve, after his death, through a *ill. If a person dies without leaving behind his *ill, his property would devolve by way of law of intestate succession and not testamentary succession (i.e. in accordance to the *ill) 8ence, it is preferable that one should ma!e a *ill to ensure that ones actual intension is followed and the property is devolved accordingly. *ill is an important testamentary instrument
The right to alter the will at any point time before the e-ecution rests with the testator. + will may be a simple form of e-pression, or a complicated disposition. In either case, the beneficiary has to prove it by attesting witnesses, removing all suspicious circumstances surrounding its e-ecution. The onus of proving that the will designates the beneficiary as the true heir to the property is on him and has to be proven beyond doubt. There may be other suspicious circumstances attending on the e-ecution of the *ill and even in such cases it is the duty of the propounder to remove all clouds of doubts and satisfy the conscience of the court that the instrument propounded( that is1 the will) is the last *ill of the testator. The essence of every *ill is that it is revocable during the lifetime of the testator. + *ill can be made at any time in the life of a person. + *ill can be changed a number of times and there are no legal restrictions as to the number of times it can be changed. It can be withdrawn at anytime during the lifetime of the person ma!ing the *ill. + *ill has to be attested by two or more witnesses, each of who should have seen the testator signing the *ill. The essential features are: 2. #egal declaration9 The documents purporting to be a *ill or a testament must be legal, i.e. in conformity with the law and must be e-ecuted by a person legally competent to ma!e it. :urther the declaration of intention must be with respect to the testator"s property It is a legal document, which has a binding force upon the family. . $isposition of property9 In a *ill, the testator be'ueaths or leaves his property to the person or people he chooses to leave his assets;belongings. + 8indu person by way of his *ill can be'ueath all his property. 8owever, a member of an undivided family cannot be'ueath his coparcenery interest in the family property <. Ta!es effect after death9 The *ill is enforceable only after the death of the testator =nder section 2> of the ?egistration +ct the registration of a *ill is not compulsory. +lso, the S5 in @arain Singh v. Aamla $evi has held that mere non1registration of the *ill an inference cannot be drawn against the genuines of the *ill. 8owever it is advisable to register it as it provides strong legal evidence about the validity of
and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be released only to the testator himself or, after his death, to an authorized person who produces the $eath 5ertificate Since a testamentary disposition always spea!s from the grave of the testator, the re'uired standard of proof is very high. The initial burden of proof is always on the person who propounds the *ill. Kinds Of Wills 5onditional *ills9 + *ill maybe made to ta!e effect on happening of a condition. In ?ajeshwar v. Su!hdeo the operation of the *ill was postponed till after the death of the testator"s wife. 8owever if it is ambiguous whether the testator intended to ma!e a *ill conditional, the language of the documents as well as the circumstances are to be ta!en into consideration. 6oint *ills9 Two or more persons can ma!e a joint *ill. If the joint *ill is joint and is intended to ta!e effect after the death of both, it will not be admitted to probate during the life time of either and are revocable at any time by either during the joint lives or after the death of the survivor. /utual *ills9 Two or more persons may agree to ma!e mutual *ills i.e. to confer on each other reciprocal benefits. In mutual *ills the testators confer benefit on each other but if the legatees and testators are distinct, it is not a mutual *ill. /utual *ills are also !nown as reciprocal *ills and its revocation is possible during the lifetime of either testator. ut if a testator has obtained benefit then the claim against his property will lie. *here joint *ill is a single document containing the *ills of two persons, mutual *ills are separate *ills of two persons. 0rivileged *ills9 0rivileged *ills are a special category of *ills and other general *ills are !nown as unprivileged *ills. S.B4 of IS+ provides that a *ill made by a soldier or a airman or a mariner, when he is in actual service and is engaged in actual warfare, would be a privileged *ill. S.BB provides for the mode of ma!ing and rules for e-ecuting privileged *ills. Ss. B4 and BB are special provisions applicable to privileged *ills whereas other sections relating to *ills are general provisions which will be supplementary to Sections B4 and BB in case of privileged
Wh
Can
Ma!e
A
Will
S.43 of Indian Succession +ct provides that every person who is of sound mind and is
not
a
minor
can
ma!e
a
*ill.
0ersons f =nsound /ind =;s. 43 of IS+ the e-istence of a sound mind is a sine 'uo non for the validity of the *ill. /ost of the *ills are not made by young persons who are fully fit but are made by persons who are aged and bed ridden 8ence, law does not e-pect that the testator should be in a perfect state of health , or that he should be able to give complicated instructions as to how his property was to be distributed. + sound disposing mind implies sufficient capacity to deal with and understand the disposition of property in his *ill 1 2) the testator must understand that he is giving away his property to one or more objects ) he must understand and recollect the e-tent of his property <) he must also understand the persons and the e-tent of claims included as well as those who are e-cluded from the *ill. In Swifen v. Swifen it was held that the testator must retain a degree of understanding to comprehend what he is doing, and have a volition or power of choice. /inors9 + minor who has not completed the age of 2> years is not capable of ma!ing *ills. The onus of proof on determining whether the person was a minor at the time of ma!ing a *ill is on the person who has relied upon the *ill. S.2 of the Indian 5ontract +ct also provides that a minor is incompetent to contract. Section 43 in the e-planation part states that married women can divest by will, their personal property. This e-planation is reinforced by section 2C of the 8indu Succession +ct that allows a woman to dispose her streedhan by her will. It also states that a deaf and dumb person can also e-ecute a will if he or she is capable of understanding what he is doing. Similarly, an insane person can ma!e a valid will in the interval of sanity and a will made by a sane person, not in his senses due to into-ication, illness etc, is not valid. /ere old age or illness of the testator however cannot ma!e the will invalid and has to be substantially established by evidence. 8ere again, the onus to prove sanity (or insanity) at time of creation of will is on
ther 0ersons Incapable f /a!ing + *ill9 D-planation I to S.43 of IS+ provides that a 8indu married woman is capable of disposing by *ill only that property which she can alienate during her lifetime. D-planation II provides that the persons who are deaf, dumb or blind can prepare a *ill if they are able to prove that they were aware of what they were doing. D-planation III provides for persons who are mentally ill and insane. 8owever subse'uent insanity does not ma!e the *ill invalid i.e. if a person ma!es a *ill while he is of sound mind and then subse'uently becomes insane the *ill is valid and is not rendered invalid by subse'uent insanity. :urther a person of unsound mind can ma!e a *ill during his lucid interval. + *ill made by a person who is into-icated or is suffering from any other illness, which renders him incapable of !nowing what he is doing, is invalid. Though the burden of proof to prove that the *ill was made out of free volition is on the person who propounds the *ill , a *ill that has been proved to be duly signed and attested *ill be presumed to have been made by a person of sound mind, unless proved otherwise. :urther, a be'uest can be made to an infant, an idiot, a lunatic or other dis'ualified person as it is not necessary that the legatee should be capable of assenting it. Re"istratin : The registration of a document provides evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity. In India, the registration of *ills is not compulsory even if it relates to immoveable property. The non1registration of a *ill does not lead to any inference against the genuineness of a *ill. In other words, registration therefore does not give any special sanctity to the *ill though registration of the *ill by the testator himself evidences the genuineness of the *ill. *hether registered or not, a *ill must be proved as duly and validly e-ecuted, as re'uired by the Indian Succession +ct. nce a *ill is registered, it is placed in the safe custody of the ?egistrar and therefore cannot be tampered with, destroyed, mutilated or stolen. #r$edure fr Re"istratin : + *ill is to be registered with the registrar;sub1
The Indian Succession +ct, 234 consolidated the laws of intestate (with certain e-ceptions) and testamentary succession, applying to all the *ills and codicils of 8indus, uddhists, Si!hs and 6ains throughout India. /uslim testamentary succession however was e-cluded from the ambit of application of this act and remains
largely
governed
by
the
/uslim
0ersonal
#aws.
Since testamentary succession is a civil act, introducing some uniformity in the laws followed by /uslims and 8indus will not attac! the essence of the two religions. Therefore, there should be no limitations imposed on the e-tent to which the property can be be'ueathed, the persons to whom such property can be be'ueath and the donation of the property by will for religious and charitable purpose and this can only be done through a =niform 5ivil 5ode for succession, as envisaged in +rticle CC of the 5onstitution.
.I.LIOGRA#*) 2. . <. C.
www.lawyersclubindia.com www.indian!anoon.com http9;;www.indianlawcases.com; http9;;articles.timesofindia.indiatimes.com
WILLS – MEANING AND NEED “The instincts and affections of mankind, in the vast majority of instances, WI lead man to make provisions for those who are nearest to them in kindred and who in life have !een the o!jects of their affections.” A Will is a document which ensures that your wishes with respect to your assets and property are followed after your death. There ften arises problems and complications
when a person dies without a *ill. + will or a testament is a
declaration of the intention of the person ma!ing it with regard to the matters which he wishes to ta!e effect upon or after his death while a codicil is a document which alters any one or more provisions in the will or adds any provision in the will or rectifies the mista!es, if any, in the will. It is supplemental to and considered as anne-ure to a will previously made. The concept of wills emanated from the right of absolute ownership in ones property. *hen a property holder died, leaving heirs and no will, it lead to unnecessary family s'uabbles. *ills and codicils came to the rescue and aided in a fair distribution of property, as per the prerogative of the e-ecuter of the will. *ills were a medium to distribute the property ac'uired by the testator in his or her life through personal preferences and minimal interference of law (as in case of /uslim 0ersonal #aw which allows only one1third of the testators property to be divested through wills). S. S.(h) of Indian Succession +ct, 234 provides that *ill means the legal declaration of the intention of a person with respect to his property, which he desires to ta!e effect after his death *ill has been defined in 5orpus 6uris Secundum as + 7*ill" is the legal declaration of a man"s intention, which he wills to be performed after his death, or an instrument by which a person ma!es a disposition of his property to ta!e effect after his death. + person can ensure as to how his property should devolve and to whom it shall devolve, after his death, through a *ill. If a person dies without leaving behind his *ill, his property would devolve by way of law of intestate succession and not testamentary succession (i.e. in accordance to the *ill) 8ence, it is preferable that one should ma!e a *ill to ensure that ones actual intension is followed and the property is devolved accordingly. *ill is an important testamentary instrument
The right to alter the will at any point time before the e-ecution rests with the testator. + will may be a simple form of e-pression, or a complicated disposition. In either case, the beneficiary has to prove it by attesting witnesses, removing all suspicious circumstances surrounding its e-ecution. The onus of proving that the will designates the beneficiary as the true heir to the property is on him and has to be proven beyond doubt. There may be other suspicious circumstances attending on the e-ecution of the *ill and even in such cases it is the duty of the propounder to remove all clouds of doubts and satisfy the conscience of the court that the instrument propounded( that is1 the will) is the last *ill of the testator. The essence of every *ill is that it is revocable during the lifetime of the testator. + *ill can be made at any time in the life of a person. + *ill can be changed a number of times and there are no legal restrictions as to the number of times it can be changed. It can be withdrawn at anytime during the lifetime of the person ma!ing the *ill. + *ill has to be attested by two or more witnesses, each of who should have seen the testator signing the *ill. The essential features are: 2. #egal declaration9 The documents purporting to be a *ill or a testament must be legal, i.e. in conformity with the law and must be e-ecuted by a person legally competent to ma!e it. :urther the declaration of intention must be with respect to the testator"s property It is a legal document, which has a binding force upon the family. . $isposition of property9 In a *ill, the testator be'ueaths or leaves his property to the person or people he chooses to leave his assets;belongings. + 8indu person by way of his *ill can be'ueath all his property. 8owever, a member of an undivided family cannot be'ueath his coparcenery interest in the family property <. Ta!es effect after death9 The *ill is enforceable only after the death of the testator =nder section 2> of the ?egistration +ct the registration of a *ill is not compulsory. +lso, the S5 in @arain Singh v. Aamla $evi has held that mere non1registration of the *ill an inference cannot be drawn against the genuines of the *ill. 8owever it is advisable to register it as it provides strong legal evidence about the validity of
and therefore cannot be tampered with, destroyed, mutilated or stolen. It is to be released only to the testator himself or, after his death, to an authorized person who produces the $eath 5ertificate Since a testamentary disposition always spea!s from the grave of the testator, the re'uired standard of proof is very high. The initial burden of proof is always on the person who propounds the *ill. Kinds Of Wills 5onditional *ills9 + *ill maybe made to ta!e effect on happening of a condition. In ?ajeshwar v. Su!hdeo the operation of the *ill was postponed till after the death of the testator"s wife. 8owever if it is ambiguous whether the testator intended to ma!e a *ill conditional, the language of the documents as well as the circumstances are to be ta!en into consideration. 6oint *ills9 Two or more persons can ma!e a joint *ill. If the joint *ill is joint and is intended to ta!e effect after the death of both, it will not be admitted to probate during the life time of either and are revocable at any time by either during the joint lives or after the death of the survivor. /utual *ills9 Two or more persons may agree to ma!e mutual *ills i.e. to confer on each other reciprocal benefits. In mutual *ills the testators confer benefit on each other but if the legatees and testators are distinct, it is not a mutual *ill. /utual *ills are also !nown as reciprocal *ills and its revocation is possible during the lifetime of either testator. ut if a testator has obtained benefit then the claim against his property will lie. *here joint *ill is a single document containing the *ills of two persons, mutual *ills are separate *ills of two persons. 0rivileged *ills9 0rivileged *ills are a special category of *ills and other general *ills are !nown as unprivileged *ills. S.B4 of IS+ provides that a *ill made by a soldier or a airman or a mariner, when he is in actual service and is engaged in actual warfare, would be a privileged *ill. S.BB provides for the mode of ma!ing and rules for e-ecuting privileged *ills. Ss. B4 and BB are special provisions applicable to privileged *ills whereas other sections relating to *ills are general provisions which will be supplementary to Sections B4 and BB in case of privileged
Wh
Can
Ma!e
A
Will
S.43 of Indian Succession +ct provides that every person who is of sound mind and is
not
a
minor
can
ma!e
a
*ill.
0ersons f =nsound /ind =;s. 43 of IS+ the e-istence of a sound mind is a sine 'uo non for the validity of the *ill. /ost of the *ills are not made by young persons who are fully fit but are made by persons who are aged and bed ridden 8ence, law does not e-pect that the testator should be in a perfect state of health , or that he should be able to give complicated instructions as to how his property was to be distributed. + sound disposing mind implies sufficient capacity to deal with and understand the disposition of property in his *ill 1 2) the testator must understand that he is giving away his property to one or more objects ) he must understand and recollect the e-tent of his property <) he must also understand the persons and the e-tent of claims included as well as those who are e-cluded from the *ill. In Swifen v. Swifen it was held that the testator must retain a degree of understanding to comprehend what he is doing, and have a volition or power of choice. /inors9 + minor who has not completed the age of 2> years is not capable of ma!ing *ills. The onus of proof on determining whether the person was a minor at the time of ma!ing a *ill is on the person who has relied upon the *ill. S.2 of the Indian 5ontract +ct also provides that a minor is incompetent to contract. Section 43 in the e-planation part states that married women can divest by will, their personal property. This e-planation is reinforced by section 2C of the 8indu Succession +ct that allows a woman to dispose her streedhan by her will. It also states that a deaf and dumb person can also e-ecute a will if he or she is capable of understanding what he is doing. Similarly, an insane person can ma!e a valid will in the interval of sanity and a will made by a sane person, not in his senses due to into-ication, illness etc, is not valid. /ere old age or illness of the testator however cannot ma!e the will invalid and has to be substantially established by evidence. 8ere again, the onus to prove sanity (or insanity) at time of creation of will is on
ther 0ersons Incapable f /a!ing + *ill9 D-planation I to S.43 of IS+ provides that a 8indu married woman is capable of disposing by *ill only that property which she can alienate during her lifetime. D-planation II provides that the persons who are deaf, dumb or blind can prepare a *ill if they are able to prove that they were aware of what they were doing. D-planation III provides for persons who are mentally ill and insane. 8owever subse'uent insanity does not ma!e the *ill invalid i.e. if a person ma!es a *ill while he is of sound mind and then subse'uently becomes insane the *ill is valid and is not rendered invalid by subse'uent insanity. :urther a person of unsound mind can ma!e a *ill during his lucid interval. + *ill made by a person who is into-icated or is suffering from any other illness, which renders him incapable of !nowing what he is doing, is invalid. Though the burden of proof to prove that the *ill was made out of free volition is on the person who propounds the *ill , a *ill that has been proved to be duly signed and attested *ill be presumed to have been made by a person of sound mind, unless proved otherwise. :urther, a be'uest can be made to an infant, an idiot, a lunatic or other dis'ualified person as it is not necessary that the legatee should be capable of assenting it. Re"istratin : The registration of a document provides evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity. In India, the registration of *ills is not compulsory even if it relates to immoveable property. The non1registration of a *ill does not lead to any inference against the genuineness of a *ill. In other words, registration therefore does not give any special sanctity to the *ill though registration of the *ill by the testator himself evidences the genuineness of the *ill. *hether registered or not, a *ill must be proved as duly and validly e-ecuted, as re'uired by the Indian Succession +ct. nce a *ill is registered, it is placed in the safe custody of the ?egistrar and therefore cannot be tampered with, destroyed, mutilated or stolen. #r$edure fr Re"istratin : + *ill is to be registered with the registrar;sub1
The Indian Succession +ct, 234 consolidated the laws of intestate (with certain e-ceptions) and testamentary succession, applying to all the *ills and codicils of 8indus, uddhists, Si!hs and 6ains throughout India. /uslim testamentary succession however was e-cluded from the ambit of application of this act and remains
largely
governed
by
the
/uslim
0ersonal
#aws.
Since testamentary succession is a civil act, introducing some uniformity in the laws followed by /uslims and 8indus will not attac! the essence of the two religions. Therefore, there should be no limitations imposed on the e-tent to which the property can be be'ueathed, the persons to whom such property can be be'ueath and the donation of the property by will for religious and charitable purpose and this can only be done through a =niform 5ivil 5ode for succession, as envisaged in +rticle CC of the 5onstitution.
.I.LIOGRA#*) 2. . <. C.
www.lawyersclubindia.com www.indian!anoon.com http9;;www.indianlawcases.com; http9;;articles.timesofindia.indiatimes.com
