Testamentary Succession: Will it fair and square
Wills / Trusts

Testamentary Succession: Will it fair and square

It's hard to deal with the loss of a loved one, and it's even harder if the person who died was the head of the family. Some people make a Will and plan for what will happen after they die. But many people don't think they'll need it and leave it up to chance. When this happens, it's hard for the rest of the family to decide how the property should be split up and given to the heirs. There are still uncomfortable questions about who gets what, when, and how.

The answer could be "testamentary succession." This article describes testamentary succession meaning, what are testamentary succession terms which are often used when talking about Testamentary succession under the Indian Succession Act of 1925, what makes a Will valid, how important it is to have a Will, and how Hindu law handles Testamentary succession.

Testamentary Succession meaning:

In simple terms, it is defined as the succession of property by a WILL or TESTAMENT as per applicable rules of law. As per Hindu Law, any male or female can make a Will to transfer his or her property or assets to anyone. The Will is treated as valid and enforceable by law. 

An important point to note here is that the transfer of property happens as per provisions mentioned in the Will and not as per the inheritance law. However, if the Will is invalid or illegal then the transfer or devolution of property happens as per the law of inheritance. Alternatively, Testamentary succession is also referred to as right of inheritance.

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Testamentary Succession under Hindu Law

It is important to understand the frequently used terms that might sound complicated but are easy to interpret. They are:

  • Will – A legal declaration created by a person expressing clear intention or wish with regards to how his or her property and assets Will be transferred after death.

  • Testator – A person who creates his or her Will.

  • Executor – A person appointed by the Testator for executing the Will.

  • Administrator – A person appointed by the Court for executing the Will.

  • Attestation of Will – It is the process of signing the Will by two witnesses to verify the signatures of the executant.

  • Codicil – A legal document made by Testator and signed by two witnesses for making minor changes in the Will that has already been executed.

  • Probate – It is a documentary evidence of the appointment of the Executor and establishes the validity of the Will.

  • Letter of Administration – A certificate granted by the Court for appointing an Administrator of the Will.

Those who read this Article also Consulted a Lawyer about Will and inheritance. 

Important Characteristics of a Valid Will

A Testator must consider the following essential characteristics while creating his or her Will:

  • It is a written document expressing the testator's clear intentions or desire with respect to transfer of his or her assets or property.

  • It can be created by any person of age 18 years or above who is capable of entering into an agreement.

  • A person influenced by alcohol or fear or affected by illness or fraud cannot make a Will.

  • The Indian Succession Act, 1925 does not prescribe any specific format of writing a Will.

  • Minor unintentional errors in a Will – error in name spellings or details of property – does not alter the true intention of the testator.

  • The Testator should sign the Will which should be countersigned by two witnesses. In cases where the testator cannot sign, thumb impressions of the testator should be taken.

  • The signature of the testator should appear at the bottom of the page or at the end of the contents of the Will.

  • The witnesses to the Will should not be the beneficiaries themselves.

  • A Will comes into force only after the death of the testator.

  • And finally, it is not mandatory to make the Will document on a stamp paper and register it. The testator can also write it on a plain paper.

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Why is having a Will Important?

Each person hopes that his or her legal heirs will stay with the family even after he or she dies and that there won't be any fights over property. After all, dividing up property in a fair way is a touchy subject. Today, if it's done right, it can build long-lasting relationships, but if it's done wrong, it can break relationships for good.

Making a fair Will is very helpful for this reason. The person making the will must write down clearly what he or she wants to happen to his or her assets after he or she dies. The Will must make it clear how the testator's property will be given to his or her heirs, to whom it will be given, how much each heir will get, and so on.

Generally, a very common question arises here as to what happens if a person dies without leaving a Will behind? In such cases, the division and transfer of property happens by way of law. This is called intestate succession.

Which law governs Testamentary Succession?

In India, Testamentary succession is governed by The Indian Succession Act 1925 including the intestate succession. Most importantly, this law extends to the whole of India but is only applicable to the Wills and codicils of Hindus, Sikhs, Buddhists and Jains by religion.

Also, for Hindus, the intestate succession and all its exceptions are codified in the Hindu Succession Act, 1956. It does not apply to Muslims, Christians, Parsis and Jews. For example, Muslims are allowed to dispose their property and assets according to Muslim Law.

Conclusion

It is always advisable to write a well thought and a fair Will. In case of any ambiguity or in the absence of a Will, there is a possibility that the legal heirs of the deceased would engage in unwanted ugly legal battles for claiming their rightful share.

Legal Experts at LegalKart can help draft a Will that best suits your requirement. 

Those who read this Article also Consulted a Lawyer about Will and inheritance.