INTRODUCTION
One of the key areas of personal law is the law of succession. Succession is a way for a man’s property to pass from him to his direct heirs after his death. The owner of the property determines how the property is distributed or devolved. India has separate laws governing intestate and testamentary succession, and how they are applied relies on a variety of factors, including the partners’ respective religions, place of residence, community, and kind of marriage.
Additional differences exist in these regulations depending on factors such as schools and sub-schools, such as the Muslim Hanafi and Shia School and the Hindu Mitakshara and Dayabhaga Schools. These factors or components serve as the fundamental foundation for several applicable succession rules[1].
WHAT IS TESTEMENTARY SUCCESSION
Testamentary succession is the method by which an individual divides their belongings according to their will. A will can only be made for an individual’s own belongings. Testamentary succession is governed by the Indian Succession Act of 1925. A person who is granted testamentary succession has the legal power to designate, during his lifetime, how his estate will be dispersed after his death.
The law respects the deceased person’s will in addition to safeguarding its enforcement (to compel observation and obedience to that will). If someone makes decisions on the distribution of their belongings using this technique, it is deemed that they have formed a will.
The process by which a decedent makes decisions about the distribution of their assets is known as testamentary succession. It has to do with the right of an heir to receive property from a deceased ancestor. The main factor influencing laws of succession is the type of religion practiced by an individual; some include rituals, while others rely on holy texts.
A written declaration of a person’s desires regarding the division of their estate or possessions after death is called a will. The Indian Succession Act of 1925 is a significant document that directs the fundamentals of testamentary succession[2].
TESTEMENTARY SUCCESSION UNDER MUSLIM
An executor is known in Mohammedan law as a wasi, which comes from the word “wasiyyat,” which denotes a will. A Muslim who is of legal age and in good mental health is qualified to create a will. Using a particular form is not necessary when creating a valid will. Any unambiguous testamentary character declaration will suffice.
The will may be expressed orally or in writing. Any property that the testator owned and might have transferred at the time of death can be disposed of through a will. Of course, a will cannot bequeath property to another individual. Once a Muslim has paid his debts and buried him, he can only dispose of one-third of his belongings. The remaining two-thirds of the property will go to the heirs of the deceased.
TESTEMENTARY SUCCESSION UNDER HINDU
The regulations governing testamentary succession among Christians, Parsis, and Hindus are found in the Indian Succession Act, 1925. This Act does not address substantive legal issues, such as the types of property that may be transferred or the types of estates and interests that may be created.
The following formalities are primarily addressed by the Indian Succession Act of 1925:
- Execution is the process of validating a legal document by meeting all formal conditions.
- Revocation: the capacity to withdraw a will, revoke it, or reverse it.
- Revival: the resumption of activity, acceptability, energy, or use after a period of decline in popularity.
- An explanation or conceptualization is called an interpretation.
- The process by which a court decides if a will is legitimate includes the award of probate, which also covers other legal declarations, duties, and authority of the executors (those chosen by the testator to carry out their desires).
An administrator is a person who has the authority to manage an estate, especially if the decedent died intestate or without leaving executors.
Nonetheless, testamentary succession is governed by a secular law in every community.
TESTEMENTARY SUCCESSION UNDER CHRISTIANS
A will or probate can be used to manage a person’s testamentary succession. Nonetheless, a will needs to be valid and the person drafting it needs to be competent in order for it to be considered legal. Some important aspects of testamentary succession for Christians and Parsis are as follows.
Individuals with the capacity to create a will:
- Ability to Make a Will: Any adult who is of sound mind and is not a minor may make a will to distribute his property. Therefore, anyone can make a will if they have the knowledge and the desire to do so, including married women and people who are blind, deaf, or dumb.
- Competency to make a Will: The Indian Contract Act of 1872 specifies a person’s competency; for example, an intoxicated or diseased person may not be in a suitable mental state to make a will.
- Concept of a Testamentary Guardian: In his will, a father designates one or more guardians for his children until the child reaches adulthood.
- Revocation of the Will by the Testator’s Marriage: As per Section 69 of the Succession Act, a testator’s marriage, which takes place after the will is written, is presumed to have revoked any and all wills.
- Privileged and Unprivileged Wills: “Privilege wills” are those that are created and executed in compliance with Section 66 of the Act, while “unprivileged wills” are those that fulfill the conditions specified in Section 63 of the Act.
- Bequeath of property to religious or charitable causes
According to Section 118 of the Succession Act, 1925, which only applies to Christians and does not apply to Parsis, a person who has a nephew, niece, or other close relative may only leave their property to charitable or religious organizations if they meet two requirements: - A will like this was carried out at least a year and a half prior to his passing.
- Such a will has been placed in the safekeeping of living people’s wills, as required by law, within six months of its execution.
However, the Supreme Court ruled in John Vallamattom v. Union of India[3], that Section 118 was illegal and invalid because it violated Articles 14, 15, 25, and 26 of the Constitution and was discriminatory.
CONCLUSION
India is a nation of many different religions, and all religions are granted equal rights under our constitution. But both the average person and law enforcement may find it difficult and tiresome to keep up with the numerous succession laws. Similar to how every Indian citizen, regardless of caste, religion, or culture, is accorded equal recognition under the country’s fundamental rights, understanding and upholding the law would be made easier for both the general public and law enforcement officials if all religions adhered to a uniform code of succession laws.
It can be hence concluded that testamentary succession of Hindus, Muslims and Christians is governed by the Indian Succession Act, 1935. Part VI of Indian Succession Act, 1935 governs the testamentary succession of all these three religions. Due to the various religions that are practiced in India, there are numerous succession rules, which has made them even more complicated.
[1] Paras Divan, Family Law II.
[2] https://www.geeksforgeeks.org/testamentary-succession-meaning-and-laws/.
[3] John Vallamattom v. Union of India, (2003) 6 SCC 611.