Wills / Trusts

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Common Terms related to 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.

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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 wishes that his legal heirs stay a part of the cohesive family even after his or her death and that there are no fights over property matters. After all, fair division of property is a sensitive matter. In today’s times, if it is done properly, it can make long lasting relationships and if done otherwise, it breaks relations forever.

It is for this purpose, making a fair Will comes very handy. The testator must clearly document his or her desires with respect to the assets that his legal heirs would carry out after his or her death. The Will must clearly state how the testator's property Will be transferred, to whom it Will be transferred, how much share of property Will be transferred to different heirs 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.

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When succession takes place in this manner, it is known as testamentary succession. 

Meaning of Intestate Succession

In other cases, a person does not leave behind a will. In such cases, intestate succession law controls succession. Thus, the persons who become entitled to the deceased's properties are the deceased's, legal heirs. In India, the succession law applicable to a deceased's estate depends on their religion. Hindus, Muslims, Christians, Parsis, etc., have different succession laws. When succession takes place in this manner, it is known as intestate succession. 

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Intestate Succession under Hindu Law

If the deceased is a Hindu, Hindu Succession law will govern the succession. The Hindu Law of Intestate Succession is in the Hindu Succession Act, 1956. 

Two Types of Property

Under Hindu Law, the property is of two types: 

1. Joint Family Property: The Hindu Joint Family is an ancient social structure prevailing in Indian society. In Hindu Law, specific properties are considered Joint Family Property. Generally, all property inherited from one's father, paternal grandfather, and paternal great-grandfather are considered Joint Family Property. 

2. Self-Acquired Property: All other properties are considered the Self-Acquired Property of the respective person. The most unambiguous indication of Self-Acquired Property is that it is acquired with the money of one's efforts.

This distinction is important because, depending on where you reside, different rules govern the succession of Joint Family Property and Self-Acquired Property. 

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The succession of Joint Family Property

Depending on where you reside, you will be governed either by Dayabhaga Law or Mitakshara Law. Generally, Hindus living in West Bengal, Orissa, and parts of Assam, are governed by Mitakshara Law, and Mitakshara Law governs all other Hindus. Both of these refer to old schools of religious Hindu law that prevailed in these respective geographical regions. Once upon a time, these schools of law governed the substantial part of Hindu succession. Today, there are of minimal significance. Legally, its only importance in the present is determining the order of intestate succession.

Section 6 of the Hindu Succession Act governs the Mitakshara Joint Family Property's succession. When a coparcener dies, their share in the Joint Family Property passes to the legal heirs according to the rules contained in this Section. The process is as follows: 

1. You divide the whole joint family property amongst the deceased and their legal heirs. Usually, the deceased, their wife, their children (both sons and daughters), and their parents get equal shares.

2. The share the deceased person receives becomes his self-acquired property. This share passes to the deceased's legal heirs according to the rules governing Self-Acquired Property's succession (see below).

The succession of Self-Acquired Property

The rules governing the succession of Self-Acquired Property of the deceased varies based on the gender of the deceased. However, the same rules apply to all Hindus regardless of whether Dayabhaga Law or Mitakshara Law governs them. 

For male Hindus, there are four categories of legal heirs: Class I heirs, Class II heirs, agnates, and cognates. The Schedule of the Hindu Succession Act, 1956 specifies Class I heirs and Class II heirs. An agnate is a person who is (i) neither a Class I heir nor a Class II heir, but (ii) is a descendant of the deceased through a pure male line. A cognate is a person who is (i) neither a Class I heir nor a Class II heir, but (ii) is a descendant of the deceased through a line consisting of both males and females. The order of intestate succession in self-acquired property is as follows:

1. Class I Heirs: If any Class I heir[s] exist, they get the deceased's whole Self-Acquired Property. If more than one such heir exists, they both get equal shares. The deceased's wife, sons, daughters, and mother are notable Class I heirs. However, the father of the deceased is not a Class I heir. 

2. Class II Heirs: If not a single Class I heir exists, the whole Self-Acquired Property of the deceased goes to the Class II heirs. The deceased's father, brothers, and sisters are notable Class II heirs. If the father is alive, he takes the whole property. If he isn't alive, then the brothers and sisters take the property in equal shares. 

3. Agnates: If there are no Class I and Class II heirs, the deceased's agnates take the whole of the Self-Acquired Property. 

4. Cognates: If there are no Class I and Class II heirs, the deceased's cognates take the whole of the Self-Acquired Property. 

A different set of rules applies to female Hindus. For female Hindus, the order of intestate succession for legal heirs is: (i) sons, daughters, and husband; (ii) heirs of the husband; (iii) parents; (iv) heirs of the father; and (vi) heirs of the mother. Each category is preferred to the later ones, in that order of preference. All heirs of the same class get equal shares of the property. 

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Position of Illegitimate Children

The intestate succession of an illegitimate child is only through his mother. An illegitimate child's share in intestate succession is restricted to his mother and not his father.  

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