Learn everything about Section 57 of the Indian Succession Act

While obtaining probate it is always the question of whether certain the provisions of the Will are applicable to you or not. Section 57 of the Indian Succession Act covers the basic principles related to the applicability of certain provisions of the Will which will also give you clarity as to your Will. So, let’s move ahead to learn about it in detail!

Introduction to Section 57 of the Indian Succession Act

Section 57 of the Indian Succession Act deals with the applicability and the capability of the parties to make a Will and in what circumstances it can be made insufficient. But the question of these only comes into the picture when the deceased has left a Will but now you must be wondering as to what these terms such as Will, Probate and Testamentary Succession stand for. Let’s find out!

• Wills: Wills are defined under the Indian Succession Act that refers as a legal declaration or a document that a person writes for the devolution of their assets amongst legal heirs upon their demise. There is no set format for writing a Will in India and as simple as it can be made upon a white piece of paper.

• Probate: Probate is the process of obtaining a certified copy under the seal of the court for entrusting the powers upon the executor to execute the Will in accordance with the provisions of the Will.

• Testamentary Succession: Testamentary Succession proceeds through a Will or a Codicil. In simple words, a testamentary succession is the execution of a Will.

What is the applicability to make Wills?

Wills are covered by Part IV of the Indian Succession Act and on the other hand Probates are defined under Part IX of the Indian Succession Act and Section 57 of the Indian Succession Act provides applicability of the act to a certain class of the Wills made by Jain, Sikh, Buddhist and Hindu but this act does not apply to the transfer of the properties by Mohammedan, Hindu, Sikh or the Buddhist (which are not covered by above).

In general, the Act also covers:

• Wills that have been made out of India though related to the property situated in any of the territories as specified or defined under Section 57(i).

• The Wills were made by Hindu, Buddhist, Jain and Sikh on or after 1 January 1927.

• The Will that has been made within the territory governed by the Lieutenant Governor of Bengal or within the local limits of the high courts of Bombay and Madras.

What are the Eligibility Criteria for a Will?

• Sound mind: The person writing their Will must be of sound mind.

• Age: The person writing the Will must have attained 18 years of age.

What are the Criteria under which a Will can be held invalid?

• Incapacity: If due to any incapacity such as intoxication or illness, the person making the Will is unable to make a valid judgment or where they are unable to understand the consequences of their acts.

• Consent not freely obtained: If the Will  is made by any kind of inducement, fraud, misrepresentation, threat or coercion

What are the Essential Elements of a Will?

• Testator: The testator is the person who is signing the Will  and this is why the details of the testator are required to be incorporated in a Will 

• The intention of the Testator: The second most important ingredient of a valid Will is the intention of the testator, which must be free and should not be influenced by any factors such as fraud, coercion, misrepresentation or undue influence.

• Details of the Assets: The next important element of a valid Will is the details of all the assets of the testator for which they are drafting the Will.

• Details of all the Beneficiaries: The Will shall also incorporate the names of all the beneficiaries upon which the testator wants to devolve their properties.

• Detail of the Executor: An Executor is a person who executes a Will upon the demise of the testator as per the wishes written in the Will.

• Signature: The Testator is required to sign the Will in the presence of two independent witnesses and the witnesses are also required to sign the Will.

What are the types of a Will?

• Unprivileged Wills: As the name connotes, it is a type of Will that is not made by either a soldier, any person involved in an expedition or engaged in warfare or a mariner at sea.

• Privileged Wills: The privileged Wills are totally opposite of the privileged wills and are made by a soldier, a person engaged in a mariner at sea, warfare or a person involved in an expedition.

• Mutual Wills: As the name suggests, these types of Wills are made by two persons usually between husband and wife to confer upon each other benefits of the other.

• Duplicate Wills: The Testator drafts duplicate Wills in order to keep them safe. It can either be kept with a bank, executor or trustee. But if the testator destroys the Will in their possession then the other copy Will also be considered as revoked.

• Joint Will: As the name suggests it is that type of a Will which is signed by two or more persons. If there is a condition in the joint Will that the Will is to come into effect after the death of both the Will s then the Will cannot come into effect upon the death of any party.

• Contingent Wills: Contingent Wills are said to be Wills that depend upon the contingency of an Event or satisfying of certain conditions so if these conditions do not take place the Will cannot come into effect.

• Concurrent Wills: Concurrent Wills are two or more Wills made by one person to explain or provide further instructions for the disposal of the property. For instance: A Will  deals with the disposal of movable property and another Will  can deal with the disposal of immovable property

• Sham Wills: Sham Wills are the Wills that are made by fraud or coercion to the testator as these take the free Will of the testator.

• Holograph Wills: The testator writes the holograph Wills totally in their own handwriting.

Section 213 of the Indian Succession Act

Section 213 of the Indian Succession Act and Section 57 of the Indian Succession Act should be read in conjunction with each other. The former Section deals with the powers of the Executor and the Administrator to dispose of the immovable property of the testator. However, later deals with the applicability of the testator to make a Will.

The main intent behind incorporating his provision is to prevent any unauthorized or improper handling of the property of the deceased by making a requirement of obtaining a formal Grant of Probate from the court.

What is the Purpose of Section 213 of the Indian Succession Act?

• Protects Rights of the Legal Heirs: As we have already discussed the testator makes a requirement to obtain the Grant of Probate or Letters of Administrator and this Grant of Probate or Letters of Administration protects the rights of the legal heirs and the beneficiaries of the deceased.

• Authentication of Will: For the Grant of Probate or Letters of Administration the terms of the Will are authenticated by a court of law gives an added advantage that the executor or administrator of the estate is acting under the terms of the law.

• Compliance with the Laws: Section 213 of the Indian Succession Act provides a legal rule that must be followed before dealing with immovable property.

• Prevents unauthorised Transactions: Without obtaining a Grant of Probate or Letters of Administration, no person can dispose of any movable property or immovable property thereby preventing any kind of unauthorised transactions.

What is the Nature and Scope of Section 213 of the Indian Succession Act?

Nature of Section 213

• Authorised Executors: Section 213 is a protective provision as it enables to protection of the interests of the legal heirs and the beneficiaries by providing only the authorized executors to dispose of the assets of the deceased.

• Legal Compliance: Section 213 mandates obtaining the Grant of Probate from the court which must be satisfied before the disposal of the immovable property.

• Regulation on the Powers of the Executor: Section 213 makes it an obligation for the executor to exercise their powers within the limitation imposed by the Section itself.

Scope of Section 213

• Declaration of Transactions as Void: It is a pre-requisite of Section 213 of the Indian Succession Act that a grant of probate must be obtained from the court and if immovable property is disposed of without obtaining a grant of probate such transactions can be declared void.

• Applies to Immovable Property: Section 213 of the Indian Succession Act is only applicable to immovable properties and an immovable property can be disposed of without fulfilling the criteria of obtaining a Grant of probate.

• Scritirisation by Judiciary: The Court requires the scrutinization of the required and necessary documents to ensure their validity.

Conclusion

Section 57 of the Indian Succession Act deals with the eligibility criteria of writing/making of a Will while Section 213 deals with the procedure and the devolution of the immovable property by the executor. These two Sections should be read in conjunction with each other to properly devolve the immoral property upon the death of the testator.

Frequently Asked Questions on Section 57 of the Indian Succession Act

Q1. What is Section 57 of the Succession Act? 

Ans 1. This Section deals with the applicability of certain provisions of the part to a class of Wills made by the Hindus.

Q2. What is Section 58 of the Indian Succession Act?

Ans 2. This Section deals with the general application of the Indian Succession Act which tells that these provisions do not apply to testamentary succession.

Q3. Is Probate of Will compulsory in India?

Ans 3. No, obtaining a Will is not mandatory but optional for the person who is seeking the probate of the Will.

Q4. What is the time limit for property transfer after death?

Ans 4. As per the limitation act the legal heirs are required to claim the property within 90 days of the death of the deceased.

Q 5. What are the two disqualifications to the succession of property?

Ans 5. The two disqualifications to the succession of property are those people who commit murder or abet the commission of the murder.

Q 6. Can a mother claim her on’s property after death?

Ans 6. Yes, a mother possesses the legal inheritance rights to claim the property of her son after his death.

Q7. Can property be transferred without probate in India?

Ans 7. No, a property cannot be transferred without a probate in India solely on the basis of the Will.

Q8. How much time does probate take?

Ans 8. The process of the probate takes around 1 year

Q9. Is a Legal Heir Certificate required if there is a Will?

Ans 9. No, a legal heir certificate is not required if there is a Will. A legal heir certificate is only required at the time when there is no Will.

Q 10. Who is the legal owner of the property after death?

Ans 10. The immediate family members are the legal owners of the property after the death of the deceased.