Indian Succession Act

The Indian Succession Act, 1925 Some Important features: The personal law under the Indian Succession Act is simple and uncomplicated as compared to the personal laws of the Hindus and the Muslims. However, here too any property that devolves through Wills, or any inherited property is not registered or recorded in most instances Testamentary Succession Meaning of will: As per Section 2 (h) of Indian Succession Act, 1925 "will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. ‘Codicil’ means an instrument made in relation to Will and explaining, altering or adding to its dispositions and is deemed to form part of the Will — Section 2(d) of Indian Succession Act, 1925. (Competency required for making a will is also applicable for making of a codicil) Who can make a Will or Codicil? Every person of sound mind, not being minor may dispose of his property by Will. As a general rule, until, the contrary is established, a testator is presumed to be sane and to have a mental capacity to make valid Will. However no person can make Will while he is in a state of mind arising from intoxication or from illness or from any other cause such that he does not know what he is doing.

Section 59 in the Indian Succession Act, 1925 Every person of sound mind not being a minor may dispose of his property by will. Explanation 1- A married woman may dispose by will of any property which she could alienate by her own act during her life. Explanation 2- Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it. Explanation 3- A person who is ordinarily insane may make a will during interval in which he is of sound mind. Explanation 4- 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. Registration of Wills: According to the Section 18 of the ‘Registration Act, 1908’ the registration of a Will is not compulsory. Once a Will is registered, it is strong legal evidence that the proper parties had appeared before the registering officers and the latter had attested the same after. The process of registration begins when a Will instrument is deposited to the registrar or sub-registrar of jurisdictional area by the testator himself or his authorised agent. Once the scrutiny of Will instrument is done by the registrar and registrar is satisfied with all the documents then registrar will make the entry in the Register-Book by writing year, month, day and hour of such presentation of the document and will issue a certified copy to the testator. In case if registrar refuses to order Will to be registered then testator himself or his authorised agent can institute a civil suit in a court of law and court will pass decree of registration of Will if court is satisfied with the evidence produced by the plaintiff. Essential Characteristics of Will are: (a) The document must be in accordance with the requirements laid down under section 63 of Indian Succession Act, 1925; i.e., executed by a person competent to make Will and attested as required under the Act. (b) The declaration should relate to the properties of the testator, which he wishes to bequeath.

(c) The declaration must be to the effect that it operates after the death of Testator and is revocable during his life time. (d) After the Indian Succession Act, 1925, Wills (except made by Mohammedans) should be made in writing.

Types of Wills Under the Indian Succession Act, Will can be Privileged Will or Unprivileged Will. 1. Privileged Wills: As it can be understood from the word privilege provided to certain persons. A privileged Will is one which is made by any soldier, airman, navy persons, mariner who are willing to dispose of their estate during their course of employment. A soldier includes officers and all other rank officers of service but does not include a civilian engineer employed by the army, having no military status. A soldier while making an instrument of ‘Will’ must have attained the age of 18 years and where a will made by the soldier is in the oral form, will be valid only for a month though a written Will always remain operative. A privileged Will may be revoked by the testator by an unprivileged Will or codicil, or buy any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged Will, or by the burning, tearing or otherwise destroying the same by the testator. 2. Unprivileged Wills: Wills executed according to the provisions of ‘Section 63’ of the ‘Indian Succession Act, 1925’ are called Unprivileged Wills. An unprivileged Will is one which is created by every testator not being a soldier, airman, mariner so employed. An unprivileged Will like Codicil can be revoked by the testator only by another Will or by some writing declaring an intention to revoke the same and to be executed in the manner in which an unprivileged Will can be executed under the Act or by burning, tearing or destroying of the same by the testator or by some other person in his presence and by his directions with the intention of revoking the same.

Probate: Probate is a certificate granted under the seal of Competent Court, certifying the Will (a copy whereof is annexure thereto) as the Will of the testator and granting the

administration of the estate of the deceased in accordance with that Will to the executor named under the Will. It is the copy of the will which is given to the executor together with a certificate granted under the seal of the court and signed, by one of the registrars, certifying that the will has been proved. The application for probate shall be made by petition along with copy of last Will and testament of the deceased to the court of competent jurisdiction. The copy of the will and grant of administration of the testator’s estate together, form the probate. It is conclusive evidence of the validity and due execution of the will and of the testamentary capacity of the testator. A probate is obtained to authenticate the validity of the will and it is the only proper evidence of the executor’s appointment. The grant of probate to the executor does not confer upon him any title to the property which the testator himself had no right to dispose off which did belong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator. Probate proceedings cannot be referred to Arbitration. The probate court (whether it is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to grant probate of a Will of the deceased. Effect of grant of probates: A probate granted by a competent court is conclusive evidence of the validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding to revoke the probate. However, it only establishes the legal character of the executor and in no way decides the title or even the existence of the property devised. The grant of the probate decides only the genuineness of the Will and the executor’s right to represent the estate. • The grant of a probate is conclusive evidence of the testamentary capacity of the person who made the Will. • A probate is conclusive as to the genuineness of the Will and appointment of the executors. • Once a probate is granted, no suit will lie for a declaration that the testator was of unsound mind. • Probate is conclusive as to the representative title of the executor.

Letters of Administration A letter of administration can be obtained from the Court of competent jurisdiction in cases where the testator has failed to appoint an executor under a Will or where the executor appointed under a Will refuses to act or where he has died before or after proving the Will but before administration of the estate. Letters of Administration are not always necessary in cases of intestacy of Hindus, Mohammedans, Buddhists, Sikhs, Jains, Indian Christians or Parsis. Letter of Administration are always necessary where a person (governed by the Indian Succession Act) dies intestate. To whom can a letter of administration be granted: Under the Indian Succession Act, 1925, a letter of administration can be granted to any person entitled to the whole or any part of the estate of the deceased person. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government. A letter of administration cannot be granted till the expiration of fourteen days from the date of the testator's death.

Succession Certificate In case, where grant of Probate or Letters of Administration is not compulsory, Succession Certificate can be granted by the Court with respect to any ‘debt’ or ‘security’ to which a right is required to be established by Letters of Administration or Probate and for this purpose ‘security’ means Government Securities, shares, stocks and debentures in companies and incorporated institutions, debentures or securities issued by or on behalf of local authorities and any other security which the State Government may notify.

It is suggested to go through class notes also.