It is hard to cope up when a loved one passes away, even harder when the deceased is the head of the family. Some plan for succession and create a Will while they are alive. However, many don’t foresee the need and leave it to chance. In such situations, it is tough for the rest of the family members to decide how the property Will be divided amongst and transferred to heirs. Who gets what, when and how remains some uncomfortable questions?
Testamentary Succession is the possible answer. This post shares insights on what does it mean, frequently used terms related to Testamentary succession under The Indian Succession Act 1925, characteristics of a valid Will, importance of having a Will and how Hindu Law governs Testamentary succession.
What is the meaning of Testamentary succession?
In simple terms, it is defined as the succession of property by a WILL or TESTAMENT as per applicable rules of law. As per Hindu Law, any male or female can make a Will to transfer his or her property or assets to anyone. The Will is treated as valid and enforceable by law.
An important point to note here is that the transfer of property happens as per provisions mentioned in the Will and not as per the inheritance law. However, if the Will is invalid or illegal then the transfer or devolution of property happens as per the law of inheritance. Alternatively, Testamentary succession is also referred to as right of inheritance.
Common Terms related to Testamentary Succession under Hindu Law
It is important to understand the frequently used terms that might sound complicated but are easy to interpret. They are:
Will – A legal declaration created by a person expressing clear intention or wish with regards to how his or her property and assets Will be transferred after death.
Testator – A person who creates his or her Will.
Executor – A person appointed by the Testator for executing the Will.
Administrator – A person appointed by the Court for executing the Will.
Attestation of Will – It is the process of signing the Will by two witnesses to verify the signatures of the executant.
Codicil – A legal document made by Testator and signed by two witnesses for making minor changes in the Will that has already been executed.
Probate – It is a documentary evidence of the appointment of the Executor and establishes the validity of the Will.
Letter of Administration – A certificate granted by the Court for appointing an Administrator of the Will.
Important Characteristics of a valid Will
A Testator must consider the following essential characteristics while creating his or her Will:
It is a written document expressing the testator's clear intentions or desire with respect to transfer of his or her assets or property.
It can be created by any person of age 18 years or above who is capable of entering into an agreement.
A person influenced by alcohol or fear or affected by illness or fraud cannot make a Will.
The Indian Succession Act, 1925 does not prescribe any specific format of writing a Will.
Minor unintentional errors in a Will – error in name spellings or details of property – does not alter the true intention of the testator.
The Testator should sign the Will which should be countersigned by two witnesses. In cases where the testator cannot sign, thumb impressions of the testator should be taken.
The signature of the testator should appear at the bottom of the page or at the end of the contents of the Will.
The witnesses to the Will should not be the beneficiaries themselves.
A Will comes into force only after the death of the testator.
And finally, it is not mandatory to make the Will document on a stamp paper and register it. The testator can also write it on a plain paper.
Why is having a Will important?
Each person wishes that his legal heirs stay a part of the cohesive family even after his or her death and that there are no fights over property matters. After all, fair division of property is a sensitive matter. In today’s times, if it is done properly, it can make long lasting relationships and if done otherwise, it breaks relations forever.
It is for this purpose, making a fair Will comes very handy. The testator must clearly document his or her desires with respect to the assets that his legal heirs would carry out after his or her death. The Will must clearly state how the testator's property Will be transferred, to whom it Will be transferred, how much share of property Will be transferred to different heirs and so on.
Generally, a very common question arises here as to what happens if a person dies without leaving a Will behind? In such cases, the division and transfer of property happens by way of law. This is called intestate succession.
Which law governs Testamentary Succession?
In India, Testamentary succession is governed by The Indian Succession Act 1925 including the intestate succession. Most importantly, this law extends to the whole of India but is only applicable to the Wills and codicils of Hindus, Sikhs, Buddhists and Jains by religion.
Also, for Hindus, the intestate succession and all its exceptions are codified in the Hindu Succession Act, 1956. It does not apply to Muslims, Christians, Parsis and Jews. For example, Muslims are allowed to dispose their property and assets according to Muslim Law.
It is always advisable to write a well thought and a fair Will. In case of any ambiguity or in the absence of a Will, there is a possibility that the legal heirs of the deceased would engage in unwanted ugly legal battles for claiming their rightful share.
Legal Experts at LegalKart can help draft a Will that best suits your requirement.
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