Learn everything about the Testamentary Succession under the Indian Succession Act, 1925

If you are looking to make a Will of yours or your ancestor has left their estate for you and now you want to understand the concept of Testamentary Succession under the Indian Succession Act then we Will help in navigate through the concept of the Testamentary Succession.

Introduction

Testamentary Succession is the term used to denote the situation where the deceased has left a Will for the devolution of their property to the legal heirs. The Indian Succession Act under Section 2(h) defines Will as the legal declaration of the intention of the transfer of the property that the person desires to perform after their death.

In simpler terms, a Will is a legal instrument that becomes operative or comes into play upon the Testator’s death. After the death of the Testator, an Executor is liable for the transparent devolution of the assets of the deceased as per the terms of the Will.

What is Testamentary Succession under the Indian Succession Act?

Sections 57 to 191 of the Indian Succession Act deal with the provisions related to Testamentary Succession. These sections deal with the execution and the revocation appointment, powers of the Executor, effect of the testamentary dispositions, construction of the testamentary disposition etc.

What are Wills and Codicils?

As we have already covered a Will is defined under Section 2(h) of the Indian Succession Act though a Will found its meaning from the roots of the Latin word “Voluntas” which means to express the intention of a Testator. Therefore, a Will is the wish of the Testator as to how their properties should be devolved upon their death.

On the other hand, Codicil is a legal document that is used as an amendment or addition to the terms of the existing Will. With the help of Codici, the Testator gets room to make modifications, changes or revocations to the provisions of the original Will without the need to write an altogether new Will.

What are the Essential Elements of a Will?

• Competency of the Testator: A Testator in order to write a Will of their shall be of sound mind and has attained the age of the majority. Alongside, a Will should also adhere to the prescribed rules and regulations for the execution and the attestation of the document as specified under Section 63 of the Indian Succession Act.

• Specification of the Property: A Will specifically mention the assets of the Testator. A Will should not be only about the appointment of the Executor but it should incorporate the assets of the Testator which they want to devolve upon their death to the legal heirs.

• Operation of the Will: The operation of the Will should not be immediate but instead it should be made effective after the death of the Testator. Also, a Will can never be considered effective if the intention is to immediately carry the Will into effect.

What are the types of the Will under the Indian Succession Act?

There are two sections of the Indian Succession Act that deals with different types of Will  and there are Section 65 and Section 66:

• Privileged Wills: Section 65 of the Indian Succession Act defines Privileged Wills as the Will made by individuals in cases of certain circumstances. Under this provision, any soldier employed in the expedition, engaged in any warfare, any airmen employed or engaged similarly and any mariner at sea who has attained 18 years of age may dispose of the property with the help of a Will which is made in accordance with the provisions of section 85 of the Indian Succession Act while the mode of making and the rules of execution of the privileged Will s is defined under Section 66 of the Indian Succession Act.

• Unprivileged Wills: These Wills are made by persons who are not engaged in marine or military services. In simpler terms, these Wills are the normal Wills made in the usual course of things.

The Subject Matter of a Will 

As we have understood the significance of a Will and the writing of a Will totally depends upon the whims of the person writing their Will. The subject matters of a Will  are:

• Tangible Property: Tangible Properties are the properties that can be seen or touched with the naked eye. For instance: jewelry, furniture, vehicles, etc.

• Intangible Properties: Intangible Properties are the properties that cannot be seen or touched upon. For instance: stocks, bonds, goodwill or other intellectual property.

• Ancestral Properties: Ancestral Properties are the properties that pass from generation to generation and these properties hold special significance culturally and legally also. Some jurisdictions specifics different rules and regulations for the ancestral properties therefore ancestral properties can always be a part of the Will unless expressly prohibited by the local laws.

• Properties held in Joint-Ownership: A Testator can devolve a jointly owned property by way of a Will even in the case where the shares are undivided. The Testator in such a case bequeaths the undivided property. The legal heirs Will then become the joint owners of the property.

• Bank Account Deposits: It is a practice of the Reserve Bank of India which makes it obligatory to choose a provide a nominee to their bank account in case of their death.

Will is not required in the cases of?

• A Will is not required in the case if the person does not own a property whether movable or immovable.

• A Will is also not required in cases where the person wishes that their property should be treated in accordance with the laws of succession.

What is the Legal Competency for making a Will?

• A Will cannot be made by a person who is of unsound mind or by reason of their unsoundness unable to comprehend the essence of the Will.

• A person who has not attained majority (below 18 years of age).

• A person who is not capable of understanding or knowing what they are doing by reason of intoxication/ illness.

These conditions have been defined under Section 59 of the Indian Succession Act. The section further provides four explanations to define the competency framework:

• A Married Woman may dispose of their properties by way of a Will which she could have alienated during her lifetime.

• An insane person can only make a Will during the time when they are of sound mind.

• A person who is either blind, deaf or dumb may make a Will if they are capable of understanding what they are doing.

Under Section 61 of the Indian Succession Act, any Will of part of the Will can be declared void if has been influenced by coercion, fraud or undue influence.

What is the legal effect of A Will?

A Will has two separate effects one before the death of the Testator and other after the death of the Testator.

• Revocability: By far we have understood the importance of a Will and its revocable nature during the lifetime of the Testator because it is the intention that the Testator can make changes or modifications to their Will as the Will remains ambulatory during the lifetime of the Testator.

• Irrevocability: It is the nature of the Will that it can only be consummated upon the death of the Testator. A Will is a transaction which is in between a living individual and a dead. In the case where the Testator alienates the part of the property that is already covered by the Will during their lifetime then it also does not constitute the revocation of the Will or in any manner impact the properties available for inheritance.

The Process of Execution of Will 

Section 63 of the Indian Succession Act defines the process of the execution of a Will, though there is no prescribed form of the attestation and which the process of execution stands as:

• Execution of the Will by the Testator: The Testator is required to either place their signature or affix the Will in the presence of a witness. Alternatively, another person can sign the Will in the presence and the direction of the Testator. The signatures are required to be placed in such a manner which indicates the intention of the Testator to give effect to the Will. 

• Execution of the Will by the Witness: The Will is also required to be affixed by two independent witnesses which serves as the proof that they have witnessed the signature of the Testator. Each of the witnesses should sign the Will in the presence of the Testator.

The provisions encapsulated under Section 63 of the Indian Succession Act also apply to Codicil or any other document modifying a Will.

Revocation of a Will 

The Process of revoking a Will or Codicil is specified under Sections 62 and 70 of the Indian Succession Act. We have already understood that a Will is not a transfer document instead it is a devolution instrument and this is why it can be revoked at any time during the lifetime of the Testator. 

Further Section 70 of the Indian Succession Act specifics certain circumstances under which a Will or Codicil can be revoked and these circumstances include.

• Marriage: A Will can be revoked in the case of a marriage though the same is not applicable in the case of a Hindu.

• Revocation: If the Testator prepares a new Will and revokes the previous Will. Moreover, If the Testator writes another Will, Codicil or any writing declaring the intention of the Testator to revoke the previous it also needs to be followed by proper execution.

• Destruction of the Previous Will: If the Will is either destructed or the Will is burnt down by the Testator or upon the instruction of the Testator with an intention of revoking the Will.

The Procedure for the Registration of a Will 

As per the provisions of the Indian Registration Act, it is not mandatory that a Will  is required to be registered. Section 17 of the Indian Registration Act jots down the documents that mandatorily require registration and Will does not find a room amongst the documents.

Further Section 18 of the Indian Succession Act makes registration of the Will optional where an unregistered Will is equally valid in the eyes of the law until and under compiles with the provisions of the Indian Registration Act. However, both the Acts, Indian Succession Act and Indian Registration Act incorporate some special provisions with regard to registered and unregistered Wills.

• Deposit of the Will: If the Testator chooses not to register the Will in such a circumstance the Testator can choose to deposit their Will to the office of the Testator. Section 42 of the Indian Succession Act allows the Testator or their authorised event to deposit a sealed cover/envelope containing the Will to the registrar. Upon receiving the envelope the registrar records the details of the Will and keeps it in a fireproof box. The Testator or their authorised agent upon the death of the Testator can make an application to obtain a copy of the Will.

• Change in the Will: Under the provisions of Section 62 of the Indian Succession Act, a Testator can either alter or revoke the Will at any the they an competent to dispose of their property.

• Registration of a Codicil: As we have already mentioned a Will is not required to be registered under Section 18 of the Indian Registration Act so registration of subsequent Wills or Codicils is also not required to be registered. If the Will is not registered then there Will be no complications however if the Will is registered and the subsequent Codicils and Wills are left unregistered then it may create subsequent complications.

• Stamp Duty: Just like the Indian Registrations Act the Indian Stamp Act also provides a schedule that incorporates the documents that require payment of the stamp duty and Will does not find a place in it. However, it is always advised that the Testator and the persons authorised by them shall refer to the state legislation for deciding any rates of the stamp duty.

Grant of Probate

A Probate is required to be obtained under Section 276 of the Indian Succession Act. After obtaining a probate from the court an Executor is appointed for transparently executing the wishes of the Testator. A problem is obtained by following the below-mentioned steps:

• Preparing Documents: The application for a grant of probate is made by an Executor and the Executor is required to gather and prepare all the documents which includes a copy of the original Will, the death certificate of the Testator and the list of all legal heirs and the assets of the deceased.

• Filing the Application: After preparing the documents the next step involves filing the application in the appropriate court.

• Affidavits and Declarations: For an additional layer of authentication sometimes Affidavits and Declarations are required to be obtained.

• Review of the Application: As soon as the application is submitted to the competent court, the contents of the application are reviewed by the court and the probate is thereby granted.

Conclusion

Testamentary Succession is a way of avoiding conflicts amongst the legal heirs as it paves the way for proper and transparent distribution of the assets of the Testator upon their death. Therefore, a Will should be drafted as per the requirements of the Testator but if at any point in time during their lifetime the Testator can revoke or modify their Will.

Frequently Asked Questions on Testamentary Succession Under Indian Succession Act 1925

Q1. What is Testamentary Succession of the Indian Succession Act?

Ans 1. Testamentary Succession is the state where the deceased has died after leaving a Will.

Q2. What is the testament of succession?

Ans 2. Testament of the succession is the act of disposal of the property on the basis of the Will after obtaining the probate.

Q3. What is Section 27 of the Hindu Succession Act?

Ans 3. Under this Section, if any person is disqualified from inheritance then the properties Will be devolved in accordance as if such person has died before.

Q4. Can a daughter claim father’s property after 12 years?

Ans 4. Yes, a daughter can claim the property by giving valid reasons to the court as the limitation period of the claim is 12 years.

Q5. What are testamentary proceedings?

Ans 5. The testamentary proceedings is the procedure of the enforcement of the Will for ensuring proper execution of the deceased’s Will.

Q6. Who are Class 2 legal heirs?

Ans 6. Class 2 legal heirs are the father’s sister, brother, grandchildren and any siblings related directly by blood.

Q7. What is the difference between Agnate and Cognate?

Ans 7. Agnate is a situation where the person is related wholly through males it can be either by blood or adoption. While Cognate means a person related not wholly through males.

Q8. What is the Probate section of the Indian Succession Act?

Ans 8. Probate is granted to an Executor who is appointed by the terms of the Will.

Q9. In what situations are daughters not eligible for property?

Ans 9. Daughters are not eligible in the cases where Property was transferred before 2005.

Q10. What is a list of Testamentary Documents?

Ans 10. The list of testamentary documents are original Will, death certificate, probate application, creditor claims, final accounting, etc.