Wills under Indian Succession Act
Will means the legal declaration of the intention of a person with respect to his property, which
he desires to take effect after his death. It is a unilateral document and takes effect after the death
of the person making it. It can be revoked or altered by the maker of it at any time he is
competent to dispose of his property.
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian
Succession Act, 1925. However a will made by a Mohammedan person is not governed by the
Indian Succession Act, 1925 and they can dispose their property according to Muslim Law.
Who can make a will?
1. Every person who is of sound mind and is not a minor can make a will.
2. Persons who are deaf or dumb or blind can make a will provided they are able to know
what they do by it.
3. A person who is ordinarily insane may make a will during an interval in which he is of
sound mind.
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.
Execution of a will- Section 63
1. He shall sign or fix his mark to the will or it shall be signed by some other person in his
presence and by his direction
2. The signature or mark should be so placed that it shall appear that it was intended thereby
to give effect to the writing as a will
3. The will shall be attested by two or more witnesses, each of whom has seen the testator
sign or affix his mark on the will or Has seen some other person sign the will, in the
presence and by the direction of the testator or Has received from the testator a personal
acknowledgement of his signature or mark, or of the signature such other person;
The essential features are:
1. Legal declaration: The documents purporting to be a Will or a testament must be legal, i.e. in
conformity with the law and must be executed by a person legally competent to make it. Further
the declaration of intention must be with respect to the testator’s property It is a legal document,
which has a binding force upon the family.
2. Disposition of property: In a Will, the testator bequeaths or leaves his property to the person or
people he chooses to leave his assets/belongings. A Hindu person by way of his Will can
bequeath all his property. However, a member of an undivided family cannot bequeath his
coparcenery interest in the family property
3. Takes effect after death: The Will is enforceable only after the death of the testator
4. Registration: Under section 18 of the Registration Act the registration of a Will is not
compulsory. Also, the SC in Narain Singh v. Kamla Devi has held that mere non-registration of
the Will an inference cannot be drawn against the genuines of the Will. However it is advisable
to register it as it provides strong legal evidence about the validity of the Will. Once a Will is
registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with,
destroyed, mutilated or stolen. It is to be released only to the testator himself or, after his death,
to an authorized person who produces the Death Certificate
5. Witnesses- Each of the witnesses shall sign the will in the presence of the testator, but it shall
not be necessary that more than one witnesses be present at the same time, and no particular form
of attestation is necessary.
Definition of Will & other Related Terms
Will: A Will is a solemn document by which a dead man entrusts to the living to the carrying out
of his wishes. S. S.2(h) of Indian Succession Act, 1925 provides that Will means the legal
declaration of the intention of a person with respect to his property, which he desires to take
effect after his death.
Codicil: Codicil is an instrument made in relation to a Will, explaining, altering or adding to its
dispositions and is deemed to be a part of the Will. The purpose of codicil is to make some small
changes in the Will, which has already been executed. If the testator wants to change the names
of the executors by adding some other names, or wants to change certain bequests by adding to
the names of the legatees or subtracting some of them, a Codicil in addition to the Will can be
made to do so. The codicil must be reduced to writing and has to be signed by the testator and
attested by two witnesses. It is also the duty of the court to arrive at the intention of the testator
by reading the Will and all the codicils.
Executor: An executor is appointed by the testator, as distinguished from an administrator who is
appointed by the court. Where the Will confers the powers to collect the outstanding, pay debts
and manage the properties, the person can be said to be appointed as an executor by implication.
Probate: probate” means the copy of a Will certified under the seal of a Court of competent
jurisdiction with a grant of administration to the estate of the testator- Section 2.
Probate is an evidence of the appointment of the executor and unless revoked, is conclusive as to
the power of the executor. The grant of probate to the executor however does not confer upon
him any title to the property. A probate is a copy of a will certified by a court of competent
jurisdiction. It proves that it is the last and final will of the deceased penned on a particular date.
A probate is granted with the court seal and has a copy of the will attached to it.
Application
The application for a probate has to be made to the competent court (a pecuniary jurisdiction
may require a higher court to issue a probate for high-value immovable assets) through a lawyer.
Documents
The court usually asks the petitioner to establish the proof of death of testator, proof that the will
has been validly executed by the testator, and that it is the last will and testament of the deceased.
Notification
After receiving the petition or application for probate, the court issues a notice to the next of kin
of the deceased to file objections, if any, to the granting of probate. It also directs the publication
of a citation in a newspaper to notify the general public.
Fees
The court may impose a percentage of assets as a fee to issue a probate. In Maharashtra, for
example, a court fee of Rs. 25 is payable for assets less than Rs. 50,000; 4% for assets between
RS. 50,000-2 lakh, and 7.5% for assets over Rs. 2 lakh. There is a ceiling of 75,000.
Points to note
Under the Indian Succession Act, a probate can be granted only to the executor appointed under
a will.
If the executor is not available to administer the estate, an application must be made for
appointing the same by the court before applying for probate.
A probate is a must when the will is for immovable assets in Mumbai, Kolkata or Chennai.
Letter of Administration: Letter of Administration is a certificate granted by the competent court
to an administrator. It is a formal document issued by a court of probate appointing a manager of
the assets and liabilities of the estate of the deceased in certain situations. Courts are often asked
to rule on the management of a deceased person's estate. Generally, this is a routine matter for
probate courts, which are created specifically for this purpose. Individuals generally determine
the distribution of their estate in a will, which usually specifies an executor to carry out its
directions. But where the decedent has left no will or the executor named in a will is unable or
unwilling to serve, the courts must appoint an administrator. This appointment is made by issuing
a short document called letters of administration, which is a decree that serves as evidence of the
administrator's authority.
Attestation of Will: Attesting means signing a document for the purpose of testifying the
signature of the executants. Therefore an attesting witness signing before the executants has put
his mark on the Will, cannot be said to be a valid attestation. It is necessary that both the
witnesses must sign in the presence of the testator but it is not necessary that the testator have to
sign in their presence. Further it is not necessary that both the witnesses have to sign at the same
time. It is also not necessary that the attesting witnesses should know the contents of the Will.
FORM
WILL IN FAVOUR OF WIFE AND CHILDREN
I -........, son of Shri ..............-, resident of ......................., declare this to be my last will.
I, hereby appoint Shri ................, as the executor and trustee of this will.
I devise and bequeath to my wife Smt .................my house bearing No. ................ situated
on..........., city............... and more particularly described in the schedule I hereto, with full rights
and powers of disposal.
I devise and bequest upon my son my flat bearing No ..............., situated at .............., more
particularly described in Schedule II, with full rights and powers of disposal.
I devise and bequeath upon my daughter Smt ...................., the shares, debentures, securities and
fixed deposit mentioned in Schedule III.
In witness whereof I the abovenamed ...................have signed this will on the_ day of...........
200...
Signed by the abovenamed ............... in our presence, who in his presence, have hereunto
subscribed our names and as witnesses.
WITNESSES TESTATOR
1.
2.
Succession under Indian Succession Act
Indian Succession Act enacted in 1865 to simplify the diverse succession laws prevalent in India
and it failed due to many reasons:
1. Applied principles of Roman and English Laws
2. Woman was the absolute owner of her property
3. Daughters were given equal rights as sons
4. Agnate and cognates were equal
5. No concept of joint family property
Strongly resisted by Indians even by the native Christians
6. For native Christians- The Travancore Christian Succession Act, 1916 and the Cochin
Christian Succession Act, 1921.
7. ISA, 1865 was extended to people married under the Special Marriage Act
8. ISA, 1865 now forms a part of the ISA, 1925.
9. In Goa, Daman and Diu and Pondicherry-principles French and Portuguese legal systems
were incorporated into their existing system of personal laws.
General features of the ISA-
• Succession based on consanguinity
• Adoption is not recognized
• Primary Heirs- Surviving spouse and the lineal descendants
• Cognates, agnates, male, female heirs are equal.
• Full blood, half blood and uterine blood are equal
• Exclusion of mother in presence of the father
• Rights of widows are secured by the Act
• Collaterals – restricted upto six degrees – distant kindred 🡪 they can also inherit but only
upto six degress, not beyond
Scheme of the Act
● The Succession Act broadly divided succession into intestate and testamentary
succession. Intestate succession rules have a narrower application whereas the rules under
testamentary succession applies to most of the communities except Mohammadens.
Application of the Indian Succession Act-
1. Indian Christians.
2. Parsis- Section 50-56 lay down special rules of succession in case of intestacy of a Parsi
and testamentary succession rules also apply to Parsis.
3. Hindus (including Jains, Sikhs and Buddhists)- Section 30 of the HAS, 1956 states that
testamentary succession in cases of Hindus will be governed by ISA.
4. Persons marrying under the Special Marriage Act- Succession to the property of persons
marrying or registering the marriage under the Special Marriage Act will be governed by
ISA. After the 1976 amendment to S.21 of the SMA- Hindus marrying under the
SMA will not be governed by ISA but they will be governed by HSA.
5. Converts- After passing of the Indian Succession Act- a Hindu (or any other religion)
converting to Christianity died a Christian- he is governed by the Indian Succession Act.
The Caste Disabilities Removal Act, 1850 removed the disqualification of the succession
rights a convert has before conversion but the Act does not protect the convert’s descendants
from inheriting from any other relations.
A change of religion and loss of caste was at one time considered as grounds for
forfeiture of property and exclusion of inheritance. However, this has ceased to be the case
after the passing of the Caste Disabilities Removal Act, 1850. The Caste Disabilities
Removal Act intends to protect the person who renounces his religion.
Scheme of Succession under Indian Succession Act
Section 30- As to what property, deceased is considered to die intestate- Examples- where he has
not made a will, where he has not made a valid will, where he has made a bequest for an illegal
purpose or where he has made a bequest in favour of a non-existent person.
Primary Heirs- Spouse and Children.
S.33- states the share of the widow. (same rule applies to widower)
1) if the husband has left lineal descendants i.e child, children, grandchildren- the widow’s share
is 1/3rd and the remaining 2/3rd will go the lineal descendants.
2) if the husband has left no lineal descendants but has left kindred (blood relations) such as
father, mother etc, then the widow’s share is ½ and the other ½ will go to the other relations
according to the Act.
If a Hindu becomes a convert to Christianity and dies leaving behind a Christian widow and a
Hindu brother and sister, the distribution will be according to this Act and the widow will take ½
and the brother and sister will take ½ together.
If A Hindu marries under the Special Marriage Act and dies intestate leaving behind his widow
who was married to him under the Special Marriage Act and a son from a previous dissolved
marriage by a Hindu wife- the widow is entitled to 1/3rd and the son being the lineal descendant
is entitled to the 2/3rd.
S.37-40- Share of Lineal Descendants (Adoption, illegitimate child not recognized as heirs)
1) No widow/ widower- the child or children take equally between themselves.
2) Principle of representation does not apply at the same degree – (when there are only grand
children- they take equally and not branch wise).
Ex1- When the intestates leaves lineal descendants, not in the same degree of kindred, then the
shares devolve branch wise. For eg- A had three children- John, Mary and Henry. John dies,
leaving four children, and Mary died- leaving one child and Henry alone survived the father. On
the death of A, 1/3rd is allotted to Henry, 1/3rd to John’s four children together and 1/3rd to Mary’s
child.
Ex-2- A has left no child but left eight grandchildren and two children of a deceased grandchild,
the property is divided into nine parts, one of which is allotted to each grandchild, and the
remaining 1/9th is allotted to the great grandchildren.
S.42-48- when there are no lineal descendants- after deducting the widow’s half share- the order
of succession is
Firstly on the father
Secondly on the mothers, brothers and sisters and their descendants. (Step mother is not
included)
The rules in order of priority is listed below:
Widow- ½ Father- ½ S.42
Widow- ½ Mothers, Brothers and S.43
Sisters – ½ equally
Widow- ½ Mothers, brothers, S.44
sisters and children of
any deceased brother
or sister- ½ per stripes
(branch wise)
Widow- ½ Mother and children S. 45
of brothers and sisters
– ½ per stripes
(branch wise)
Widow- ½ Mother- ½ S. 46
Widow- ½ Brothers and sisters S. 47
and children of
brothers and sisters- ½
per stripes (branches)
Widow- ½ Remote kindred- ½ S. 48
(nearest degree)
