The Indian Succession Act, 1925

Some Important features:

The personal law under the Indian Succession Act is simple and uncomplicated as compared to the personal laws of the Hindus and the Muslims. However, here too any property that devolves through Wills, or any inherited property is not registered or recorded in most instances Testamentary Succession Meaning of will: As per Section 2 h! of Indian Succession Act, "#2$ %will% means the legal declaration of the intention of a testator with respect to his property which he desires to &e carried into effect after his death. !odicil" means an instrument made in relation to Will and e'plaining, altering or adding to its dispositions and is deemed to form part of the Will ( Section 2 d! of Indian Succession Act, "#2$. !ompetency re#uired for ma$ing a will is also applica%le for ma$ing of a codicil& 'ho can ma$e a 'ill or !odicil( )very person of sound mind, not &eing minor may dispose of his property &y Will. As a general rule, until, the contrary is esta&lished, a testator is presumed to &e sane and to have a mental capacity to ma*e valid Will. However no person can ma*e Will while he is in a state of mind arising from into'ication or from illness or from any other cause such that he does not *now what he is doing.

Section 59 in the Indian Succession Act, 1925 )very person of sound mind not &eing a minor may dispose of his property &y will. )*planation 1+ A married woman may dispose &y will of any property which she could alienate &y her own act during her life. )*planation 2+ +ersons who are deaf or dum& or &lind are not there&y incapacitated for ma*ing a will if they are a&le to *now what they do &y it. )*planation ,+ A person who is ordinarily insane may ma*e a will during interval in which he is of sound mind. )*planation -+ ,o person can ma*e a will while he is in such a state of mind, whether arising from into'ication or from illness or from any other cause that he does not *now what he is doing. .egistration of 'ills: According to the Section "- of the ./egistration Act, "#0-1 the registration of a Will is not compulsory. 2nce a Will is registered, it is strong legal evidence that the proper parties had appeared &efore the registering officers and the latter had attested the same after. The process of registration &egins when a Will instrument is deposited to the registrar or su&3registrar of 4urisdictional area &y the testator himself or his authorised agent. 2nce the scrutiny of Will instrument is done &y the registrar and registrar is satisfied with all the documents then registrar will ma*e the entry in the /egister35oo* &y writing year, month, day and hour of such presentation of the document and will issue a certified copy to the testator. In case if registrar refuses to order Will to &e registered then testator himself or his authorised agent can institute a civil suit in a court of law and court will pass decree of registration of Will if court is satisfied with the evidence produced &y the plaintiff. )ssential !haracteristics of 'ill are: /a& The document must &e in accordance with the re6uirements laid down under section 78 of Indian Succession Act, "#2$9 i.e., e'ecuted &y a person competent to ma*e Will and attested as re6uired under the Act. /%& The declaration should relate to the properties of the testator, which he wishes to &e6ueath.

/c& The declaration must &e to the effect that it operates after the death of Testator and is revoca&le during his life time. /d& After the Indian Succession Act, "#2$, Wills e'cept made &y Mohammedans! should &e made in writing.

Types of 'ills
:nder the Indian Succession Act, Will can &e +rivileged Will or :nprivileged Will. 10 1ri2ileged 'ills: As it can &e understood from the word privilege provided to certain persons. A privileged Will is one which is made &y any soldier, airman, navy persons, mariner who are willing to dispose of their estate during their course of employment. A soldier includes officers and all other ran* officers of service &ut does not include a civilian engineer employed &y the army, having no military status. A soldier while ma*ing an instrument of .Will1 must have attained the age of "- years and where a will made &y the soldier is in the oral form, will &e valid only for a month though a written Will always remain operative. A privileged Will may &e revo*ed &y the testator &y an unprivileged Will or codicil, or &uy any act e'pressing an intention to revo*e it and accompanied &y such formalities as would &e sufficient to give validity to a privileged Will, or &y the &urning, tearing or otherwise destroying the same &y the testator. 20 3npri2ileged 'ills: Wills e'ecuted according to the provisions of .Section 781 of the .Indian Succession Act, "#2$1 are called :nprivileged Wills. An unprivileged Will is one which is created &y every testator not &eing a soldier, airman, mariner so employed. An unprivileged Will li*e ;odicil can &e revo*ed &y the testator only &y another Will or &y some writing declaring an intention to revo*e the same and to &e e'ecuted in the manner in which an unprivileged Will can &e e'ecuted under the Act or &y &urning, tearing or destroying of the same &y the testator or &y some other person in his presence and &y his directions with the intention of revo*ing the same.

1ro%ate:
+ro&ate is a certificate granted under the seal of ;ompetent ;ourt, certifying the Will a copy whereof is anne'ure thereto! as the Will of the testator and granting the

administration of the estate of the deceased in accordance with that Will to the e'ecutor named under the Will. It is the copy of the will which is given to the e'ecutor together with a certificate granted under the seal of the court and signed, &y one of the registrars, certifying that the will has &een proved. The application for pro&ate shall &e made &y petition along with copy of last Will and testament of the deceased to the court of competent 4urisdiction. The copy of the will and grant of administration of the testator1s estate together, form the pro&ate. It is conclusive evidence of the validity and due e'ecution of the will and of the testamentary capacity of the testator. A pro&ate is o&tained to authenticate the validity of the will and it is the only proper evidence of the e'ecutor1s appointment. The grant of pro&ate to the e'ecutor does not confer upon him any title to the property which the testator himself had no right to dispose off which did &elong to the testator and over which he had a disposing power with a grant of administration to the estate of the testator. +ro&ate proceedings cannot &e referred to Ar&itration. The pro&ate court whether it is the <istrict ;ourt or High ;ourt! has &een granted and conferred with e'clusive 4urisdiction to grant pro&ate of a Will of the deceased. )ffect of grant of pro%ates: A pro&ate granted &y a competent court is conclusive evidence of the validity of a Will until it is revo*ed and no evidence can &e admitted to impeach it e'cept in a proceeding to revo*e the pro&ate. However, it only esta&lishes the legal character of the e'ecutor and in no way decides the title or even the e'istence of the property devised. The grant of the pro&ate decides only the genuineness of the Will and the e'ecutor1s right to represent the estate. The grant of a pro&ate is conclusive evidence of the testamentary capacity of the person who made the Will. A pro&ate is conclusive as to the genuineness of the Will and appointment of the e'ecutors. 2nce a pro&ate is granted, no suit will lie for a declaration that the testator was of unsound mind. +ro&ate is conclusive as to the representative title of the e'ecutor.

4etters of Administration
A letter of administration can &e o&tained from the ;ourt of competent 4urisdiction in cases where the testator has failed to appoint an e'ecutor under a Will or where the e'ecutor appointed under a Will refuses to act or where he has died &efore or after proving the Will &ut &efore administration of the estate. =etters of Administration are not always necessary in cases of intestacy of Hindus, Mohammedans, 5uddhists, Si*hs, >ains, Indian ;hristians or +arsis. =etter of Administration are always necessary where a person governed &y the Indian Succession Act! dies intestate. To whom can a letter of administration %e granted: :nder the Indian Succession Act, "#2$, a letter of administration can &e granted to any person entitled to the whole or any part of the estate of the deceased person. However, it cannot &e granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated &y the government. A letter of administration cannot &e granted till the e'piration of fourteen days from the date of the testator?s death.

Succession !ertificate
In case, where grant of +ro&ate or =etters of Administration is not compulsory, Succession ;ertificate can &e granted &y the ;ourt with respect to any .de&t1 or .security1 to which a right is re6uired to &e esta&lished &y =etters of Administration or +ro&ate and for this purpose .security1 means @overnment Securities, shares, stoc*s and de&entures in companies and incorporated institutions, de&entures or securities issued &y or on &ehalf of local authorities and any other security which the State @overnment may notify.

It is suggested to go through class notes also0