Testamentary Succession: Meaning and Laws

What is Testamentary Succession?

Testamentary succession is the process by which a person distributes his possessions in a will. A person may only create a will for their personal property. The Indian Succession Act, 1925 governs testamentary succession. Under testamentary succession, a person is given the legal authority to decide, while still living, how his estate will be distributed after his passing. In addition to protecting its enforcement (to compel observation and conformity to that will), the law respects the deceased person’s will. A person is considered to have created a will if they use this method to decide how to distribute their possessions.

Key Takeaways:

• Testamentary succession is the process by which a decedent will determines how their assets are distributed. It concerns an heir’s entitlement to inherit assets from a deceased ancestor.
• Laws of succession are mostly dependent on individuals practicing various religions; certain religions have prescribed behaviors, while others rely on their sacred books.
• A will is a formal statement of a person’s intentions for the distribution of their assets or estate upon death.
• Indian Succession Act 1925 plays an important role in guiding the principals of testamentary succession.

Testamentary Succession under Personal Laws

The Testamentary Succession are as follows:

1. Testamentary Succession under Muslim Law

• Mohammedan law refers to an executor as a wasi, which is derived from the word “wasiyyat,” which signifies a will.
• A Muslim who is of legal age and has a has a sound mind is able to make a will.
• Making a legitimate will does not require using any specific form. Any clear-cut declaration of testamentary character will do.
• The will can either be provided in writing or verbally. A will may be used to dispose of any property that the testator had at the time of their death and that might be transferred.
• It goes without saying that a will cannot leave property to another person.
• A Muslim is only allowed to dispose of one-third of his possessions after paying his obligations and burial costs.
• The deceased’s heirs will receive the remaining two-thirds of the property.

2. Testamentary Succession among Hindus

The Indian Succession Act, 1925, contains the laws governing testamentary succession among Hindus, Parsis, and Christians. Substantial law matters, such as what kind of property may be transferred or what kinds of estates and interests may be established, are not covered by this Act.

Indian Succession Act, 1925 mainly addresses the following formalities:

• Execution (fulfilling all formal requirements in order to validate a legal instrument).
• Revocation (the ability to retract, revoke, or undo a will).
• Revival (the return to activity, acceptability, vigor, or usage following a period of obscurity).
• Interpretation (a justification or conceptualization).
• The award of probate, which is the procedure by which a court determines a will’s legality, as well as other legal statements, obligations, and powers of the executors (those designated by the testator to carry out their wishes).

Administrators are someone with the authority to oversee an estate, particularly in cases where the decedent passed away without leaving executors or intestate.

On the other hand, it is a secular rule that governs testamentary succession in all communities.

3. Testamentary Succession among Parsis and Christians

A person’s testamentary succession may be handled through probate or the creation of a will. However, for a will to be deemed legal, it must be legitimate, and the person drafting it must be competent enough to do so. For Christians and Parsis, some significant facets of testamentary succession includes the following mentioned.

Those who possess the ability to make a will:

• Ability to make a Will: To dispose of his property, any adult who is of sound mind and is not a minor may make a will. Thus, if they have the knowledge and the will to do so, anybody can make a will, including married women and those who are dumb, deaf, or blind.
• Competency to make a Will: A person’s competency is the same as stated in the Indian Contract Act 1872; for instance, someone who is drunk or unwell may not be in a suitable mental condition to form a will.
• Idea of a Testamentary Guardian: A father’s will grants him the authority to name a guardian or guardians for his child or children until the child reaches adulthood.
• Revocation of the Will by the Testator’s Marriage: According to Section 69 of the Succession Act, all wills must be deemed revoked by the Testator’s marriage, which occurs subsequent to the writing of the will.
• Privileged and Unprivileged Wills: Wills that satisfy the requirements outlined in Section 63 of the Act are referred to as “unprivileged wills,” whereas those that are prepared and carried out in accordance with Section 66 of the Act are known as “privileged wills.”

Sample Will

I, ________, d/s/o ___________, a __________-year-old inhabitant of __________, now make this my final will and testament. Under Indian law, all previously drafted wills are hereby annulled. I am not under any coercion and am writing this voluntarily. I can understand what I write in this will, and my physical and mental health are in good condition. I’m married to _________, and together, ________, who is 26 years old, and _________, who is 27 years old, are our two children.

2. By virtue of this will, I would want to leave the following to the people I own as of right now:.

i. A 3500-square-foot, five-bedroom apartment in ________ that was purchased in April 2016 for ₹1.75 crore;

ii. Two fixed deposits each of ₹25 lacs in cash at _________ bank;

iii. One Mahindra thar car was purchased in 2022, and one Audi A6 was purchased in 2018.

iv. Five hundred grams of gold jewelry were found in the PNB vault at ________.

3. I am the owner of all assets that I have personally obtained. Regarding these assets or properties, no other person has any kind of claim, demand, title, interest, or right. On these assets, as well as any other property that may be substituted in their place or locations that I may hereafter acquire or receive, I have all rights, total power, and total authority.

4. After my passing, I would like all of the aforementioned assets to degenerate upon my wife ______, who will then succeed to the property as its single and exclusive owner, disqualifying my other heirs by law. However, all of my assets shall pass to my children equally, completely, and eternally in the event that my wife predeceases me, to the exclusion of any other legitimate successor.

5. That my wife or my children, as the case may be, would repay and discharge all of my debts and obligations, including but not limited to taxes, fines, cess, charges, etc., of any kind, whether they were generated before or after my death, from the aforementioned assets.

6. I have consciously created this will free from undue influence, pressure, compulsion, error of any type, and a sincere desire to settle any disagreement.

7. I am signing this will after thoroughly reading and comprehending its contents.

Two responsible individuals who will serve as the attesting witnesses are there with me.

In testimony whereof, I, ____________, do hereby declare this to be my final will and testament. I have also placed my hand in the presence of the witnesses listed below, all of whom have simultaneously signed this document in front of me and each other on this day..

WITNESSES:

1._______________

2.______________

TESTATOR

Name:___________

Signature: ________

Conclusion

Testamentary succession allows individuals to distribute their possessions through a will. Laws govern who can make a will and how assets are distributed, ensuring clarity and fairness in inheritance.

Testamentary Succession-FAQs

Does Islam allow for inheritance by non-Muslims?

A non-Muslim is ineligible to inherit from a Muslim, according to conventional Islamic law. In India, however, a Muslim still has the right to inherit property from a deceased Muslim relative, even if he is a non-muslim and renounces Islam later. Nevertheless, the opposite is untrue. After converting to Islam, a person is subject to Muslim personal law and is therefore not eligible to inherit property from his non-Muslim relatives.

Can someone who is insane or unchaste inherit?

Indeed, insanity and adultery do not, in accordance with Islamic law, bar a Muslim from inheriting property. Therefore, a mad or unchaste heir has the right to inherit as well.

What is the difference between testamentary succession and intestate succession?

Testamentary succession means that it occurs when a deceased person leaves a will designating particular heirs to receive their property, whereas intestate succession means that in the event that the decedent leaves no will, the laws of intestate succession applicable to the decedent’s religion take over and decide the distribution of his estate.

What rights and responsibilities do testamentary guardianships have?

Following the death of the minor’s father or mother, as applicable, the guardian designated by will may assume the role of the minor’s guardian and exercise all the rights of a natural guardian under this Act to the extent and subject to any restrictions that may be applicable, as specified in this act.

What is the meaning of relationship by uterine blood?

When two people have the same mother but have separate fathers, they are linked by uterine blood.

References:

• Ministry of Law and Justice
• Legal Studies Class XI- NCERT

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