The Indian Succession Act of 1925 deals broadly with a couple of categories of succession; intestate succession and testamentary succession. This act comprises 391 sections, seven schedules, and 11 parts. In cases where a written will testamentary is present, succession happens to be applicable. Contrarily, some intestate succession happens to be applicable in the absence of a will and when the deceased’s properties are needed to be distributed according to the religious laws.
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The Application of the Indian Succession Act
The law of succession in India applies to various persons of different religions. Some of them are:
Succession for Muslims
When the matter zeroes on Muslims, the Indian Succession Act of 1925 does not apply to intestate and testamentary succession. In the matter of Muslims, the succession happens based on the Quran besides other sources. Fatawa Alamgiri or Hedaya is believed to be the guiding power on the issue of the Muslims’ Wills. According to the Muslim law, a deceased’s properties are applied for paying the following:
Succession certificate expenses or probate or some letters of administration
Funeral as well as charges for death bed
Payment of the wages that are due to an artisan, domestic servant, or labourer for the services they have rendered to the dead and that too within three months after his death
Legacies to a max. of 1/3rd of what remains when all the payments have been made
Payment of the deceased’s other debts
The remaining 2/3rds go to the heirs.
Hindu Succession Act
When the matter zeroes on Hindus, then the laws related to the testamentary succession are applied according to the Indian Succession Act 1925. Nonetheless, the rules pertaining to intestate succession emerge to be used according to the Hindu Succession Act of 1956.
For the Hindus’ intestate succession, the Indian Succession Act does not apply because of the presence of HUF or Hindu Undivided Family according to the Hindu Law. So, the Hindu Succession Act of 1956 came into play for handling the succession according to the culture and law of the Hindus.
Succession for Sikhs
In the matter of Sikhs, the Indian Succession Act of 1925 applies to laws that are connected to testamentary succession. Nonetheless, in the case of Sikhs’ intestate succession, the Hindu Succession Act of 1956 gets used.
Succession for Jains
Jains are also included in the Indian Succession Act. The exciting thing is this act considers Jains as Hindus. And so, the provisions that are applied to the Hindus happen to also apply to the Jains. According to the Indian Succession Act of 1925, the testamentary succession laws happen to be applicable. In contrast, according to the Hindu Succession Act of 1956, successful intestate laws tend to be helpful to the Jains.
Succession for Buddhists
According to the Indian Succession Act of 1925, the testamentary succession law is applicable, whereas the intestate succession law applies according to the Hindu Succession Act of 1956 to the Buddhists.
Christian Succession Act
Christianity is considered the 3rd most prevalent Indian religion. Though the Christians of India happen to be united according to their faith, they tend to be varied in their practices as they have various denominations. Some synergetic effects have resulted in cultural variations, and they have gained legal recognition either judicially or statutorily. It has resulted in diversity in some law applications, while ambiguity is highly prevalent in the Christian laws of succession.
This ambiguity and diversity have resulted in an enactment of the law of succession in India. In brief, succession handles how a deceased’s property gets devolved to his heirs, which can be self-acquired or ancestral. Again, it might devolve in a couple of ways;
By Intestate Succession – In intestate succession, the deceased does not leave a Will and the law that governs the deceased steps in. And he decides how his estate would devolve.
By Testamentary Succession – In the matter of testamentary succession, the deceased leaves a Will, and his property gets bequeathed to the particular heir or hier.
In conclusion, the law of succession in India is a crucial aspect of the judiciary. It is a meticulous law that aims to make the succession of property seamless.
FAQs on Indian Succession Act
1. What is the Indian Succession Act, 1925?
The Indian Succession Act, 1925 is a comprehensive law that governs the two main types of succession in India: testamentary succession (where a person leaves a Will) and intestate succession (where a person dies without a Will). It consolidates the laws relating to how a deceased person's property is transferred to their legal heirs or beneficiaries. However, it's important to note that this Act does not apply to the property of Hindus, Muslims, Sikhs, Jains, or Buddhists for intestate succession, which is governed by their personal laws.
2. What are the essential features of a valid Will under this Act?
For a Will to be considered valid under the Indian Succession Act, it must have the following features:
Legal Declaration: The document must be a formal declaration of the testator's (the person making the Will) intention, made by a legally competent person of sound mind.
Disposition of Property: The Will must clearly state how the testator's property and assets are to be distributed after their death.
Effective After Death: A Will only comes into effect after the death of the testator. It can be changed or revoked by the testator at any time during their lifetime.
Proper Attestation: The Will must be signed by the testator (or have their mark) in the presence of at least two witnesses, who must also sign the Will in the testator's presence.
3. What are the main types of Wills explained in the Indian Succession Act?
The Act primarily discusses different forms of Wills, including:
Privileged Wills: These are special Wills that can be made by soldiers, airmen, or mariners engaged in an expedition or actual warfare. They have relaxed formal requirements and can even be made orally.
Unprivileged Wills: This is the most common type of Will, made by ordinary citizens. It must strictly adhere to all legal formalities, such as being in writing and being properly attested by witnesses.
Conditional or Contingent Wills: These Wills only take effect upon the occurrence of a specific condition or event. If the event does not happen, the Will is not legally enforceable.
4. How does the Indian Succession Act, 1925 differ from the Hindu Succession Act, 1956?
This is a common point of confusion. The key difference lies in their application, especially in cases of intestate succession (dying without a Will). The Indian Succession Act, 1925 governs intestate succession for communities like Indian Christians, Parsis, and Jews. In contrast, the Hindu Succession Act, 1956 specifically governs the intestate succession of property for Hindus, Buddhists, Jains, and Sikhs. For testamentary succession (with a Will), the Indian Succession Act, 1925, applies to all communities except Muslims.
5. What happens to a person's property if they die without making a Will (intestate)?
When a person to whom this Act applies dies without a Will (known as dying intestate), their property does not go to the government but is distributed among their legal heirs according to a fixed set of rules. For example, in the case of an Indian Christian male, the property is first divided between his widow and lineal descendants (children, grandchildren). If there are no lineal descendants, the property is shared between the widow and other kindred (relatives). The Act provides a clear hierarchy of who inherits and in what proportion, ensuring an orderly transfer of assets.
6. Why is the correct execution and attestation of a Will so important?
The correct execution and attestation act as the primary proof of a Will's authenticity. The signature of the testator and the attestation by two witnesses confirm that the testator signed the Will with the full understanding of its contents and out of their own free will, without any coercion or undue influence. If these procedures are not followed correctly, the Will can be challenged in court and declared invalid. This would mean the deceased person's wishes are not carried out, and their property would be distributed as if they died intestate.
7. What is the practical importance of 'probate' of a Will?
A probate is a certified copy of a Will that is approved by a court of law. It serves as official proof that the Will is genuine and is the final testament of the deceased. Obtaining a probate is crucial for the executor (the person appointed to carry out the Will's instructions) to legally transfer property, access bank accounts, and settle the debts of the deceased. While not mandatory in all parts of India for all Wills, obtaining a probate provides legal sanctity to the Will and prevents future disputes among heirs.
