Testamentary and Intestate Succession

In a multi diverse society like India the Succession of the property or properties left behind by a person after his death can be a very sensitive and complex issue, especially when the person has not prepared a Will. 

Succession of Legal heirs over property, on the death of a person may follow either in two ways: (a) Testamentary Succession (i.e. a Will), or (b) Intestate succession (i.e. without a Will). 

What is the meaning of Testamentary Succession?

A person is considered to have died as testate to all those property or properties in which he has made a Testamentary Disposition (most commonly referred to as “Will”). A Testamentary disposition can be done by every person who has a Testamentary capacity. The concept of Testamentary capacity is a legal term which is used to describe a person's legal and metal ability to make or alter a valid Will i.e. any person who is of sound mind or disposing mind and memory and not being a minor may dispose of his property.

It should be always kept in mind that a Will obtained by fraud or coercion or importunity takes away the free agency of the testator and the said Will will be considered as void. 

The minimum requirements for a person to have a testamentary capacity are as follows:

1. The Testator should be aware about the volume and valuation of his property.

2. The testator should be aware about the persons who are his legal beneficiaries.

3. The Testator should have clear understanding about the disposition he is making in the Will or Testament.

4. The Testator must be in Sound mind i.e must not be under insane delusions or under any intoxication), 

5. The Testator must not be under anyone's influence or coercion.

Any of the above requirements are not fulfilled then it should be understood that the person was not in the Testamentary capacity.

What is the meaning of Intestate Succession?

A person is considered to have died Intestate in respect of all those property or properties in which he has not made any kind of Testamentary Disposition.

Alternatively this may also apply where a will or declaration has been made, but only applies to part of the estate then the remaining estate forms the "intestate estate".

In case the disposition under the Will made by the deceased person is not capable of taking effect (i.e. invalid bequest, illegal bequest etc) then also the person is said to have died intestate.

Intestacy can be considered in two parts : A. Complete Intestacy and B. Partial Intestacy.

A. Complete Intestacy: Complete Intestacy means the person has not prepared any kind of Testamentary disposition for any property of him.

B. Partial Intestacy: Partial Intestacy means a person has prepared a Testamentary Disposition for a part of certain properties and have not mentioned certain properties in the said Testamentary disposition.

When a person has not made any Will, or has made a Will but is considered as invalid Will, then in such case the law of intestate succession follows the provisions of the Indian Succession Act, in consideration of the personal law of the deceased person. 

The Law of Intestacy for a Hindu Person is governed by Hindu Succession Act, 1956 and a Muslim person is governed by Mohammedan Law, 1937 also known as Shariat Act, 1937.

The law of Intestate Succession for Christians and Parsis are been laid down in Part V of The Indian Succession Act, 1925,  which consists of three Chapters which are as follows:-

A. Chapter I: Preliminary

B. Chapter II: Rules in cases of Intestate other than Parsis; 

C. Chapter III: Special Rules for Parsi Intestates.

The Law of Indian Succession Act, 1925 exempts the properties belonging to Hindu, Muhammadan, Buddhist, Sikh or Jaina, but does not prohibit a Hindu person from succeeding the property of a person of christian faith who died intestate . 

For Example., A Hindu Brother can inherit the property of the brother who is converted to Christian faith and died intestate and bachelor. A adopted son can also inherit the property of his adoptive father whose faith during his death was Christianity. Further, a Hindu son can inherit the property of his father who has converted his faith to Christianity during his death.

By the above examples we can understand that this Section does not prohibit a Hindu person from succeeding under it to the property of a Christian.

The law of Indian Succession Act, 1925 which shall constitute the Law of India in all cases of intestacy, subject to certain exceptions which are as follows: :

a. This part shall not apply to any intestacy occurring before the first day of January, 1866

b. This part shall not apply to the property of any Hindu, Muhammadan, Buddhist, Sikh or Jaina as they are governed by their own personal laws.

c. Any other law for the time being in force, the provisions of this Part shall constitute the law of India in all the cases of intestacy. 

Generally the administration of the estate is granted to the legal heir/s who is entitled to the whole or any portion of the estate of the deceased, or in case of more than one person making such application the court may at its discretion grant it to any one or more of them, or in the absence of any of them, it may be granted to the creditor of the deceased. 

The administration of the estate of the deceased is granted by the Hon'ble Court by way of Probate, Letters of Administration with Will or without Will and Succession Certificate and Heirship Certificate.

A person who died leaving behind the property/properties by making a Valid Will by appointing One or more Executor/s and or Executrix/s then The Hon’ble Court may grant the Certificate of Probate to the person who under the capacity of being the Executor/s and/or Executrix/s appointed under the Will has applied for Probate Certificate before the Hon’ble Court.

A person who died leaving behind the property/properties by making a Valid Will by appointing One or more Executor/s and or Executrix/s but such appointed Executor or Executrix refuses to apply or is dead, then, The Hon’ble Court may grant the Certificate of Letters of Administration with Will to the person who under the capacity of being a Legal heir has applied for Letters of Administration with Will Certificate for the property or properties of the deceased before the Hon’ble Court.

A person who died leaving behind movable and immovable property without making a Will Letters of Administration is granted by a competent court for distributing the estate of the deceased among the legal heirs of the said deceased after considering the personal law of the deceased.

A person who died leaving behind only movable property or properties in terms of Debts and / or Securities without making any Will then a Succession Certificate is issued to a person who under the capacity of being the legal heir of the deceased claims the property with respect of any debt or security, which forms a part of the estate of the deceased.

It should always be kept in mind that merely obtaining a Probate, Letters of Administration with or without Will and Succession Certificate does not vest the property absolutely in favour of the holder of the Certificate, but it only gives him the right to distribute the property of deceased under the personal laws of inheritance of the deceased to the legal heirs of the deceased. 

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Thank You!!!!

Adv. Siddharth Desai

Mob. No. 9833866343


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