TESTAMENTARY SUCCESSION

Prior to the codification of Hindu Law which
was started in 1955, Hindu Law was based on customs, traditions and
inscriptions in ancient texts and also on judicial decisions interpreting the
same. There were two schools of law, viz., Mitakshara and Dayabhaga.
While Dayabhaga school prevailed in Bengal, Mitakshara school
prevailed in the other parts of India. The Bengal school differed from Mitakshara
school in two main particulars, viz., the law of inheritance and joint family
system.

The rules relating to succession under the
uncodified customary and traditional Hindu Law were quite confusing and led to
different interpretations by courts. Moreover, enactments by several states and
by some princely states added to the problems. The rules regarding succession
were codified for the first time by the Hindu Succession Act, 1956 (“the Act”)
which came into effect from 17^th June 1956. Under the Act, the word
“Hindu” has been used in a very wide context and includes a Buddhist, a Jain or
a Sikh by religion. The Act gives clarity and effects of basic and fundamental
change on the law of succession. The main scheme of the Act is to clearly lay
down rules of intestate succession to males and females and establish complete
equality between male and female with regard to property rights. Moreover, the
old notion of what was known as ‘limited estate’ or ‘limited ownership’ of
women was abolished and the right of a female over property owned by her was
declared absolute.

With a view to give clarity, the Act has
been given an overriding effect over any text, rule or interpretation of Hindu
law or any custom or usage as part of that law in force immediately before
commencement of the Act as also over any other law in force immediately before
commencement of the Act so far as inconsistent with any of the provisions of
the Act. After passing of the Act, the rules regarding succession are governed
by the provisions of the Act replacing the provisions which were applicable
under the uncodified Hindu law.

There are two modes of succession, one is
intestate succession (when the testator dies without leaving a Will) and the
other is testate succession (when the testator leaves a Will). The Act only
applies when a Hindu male or female dies without a Will. But testate or
testamentary succession will be governed by the testamentary document/s, left
by
the testator.

Wills or rules relating to testamentary succession

This article being mainly for the chartered
accountants readers it is proposed to limit its scope to only give basic understanding
of testamentary documents without going into various complexities.

The basic testamentary document for
testamentary succession is a Will. Jarman in his treatise on Wills defines a
Will as ‘an instrument by which a person makes disposition of his property to
take effect after his demise and which is in its own nature ambulatory and
revocable during his life’. A declaration by a testator that his Will is
irrevocable is inoperative. A covenant not to revoke a Will cannot be
specifically enforced.

While the Act does not cover testamentary
disposition, the same is governed under the provisions of the Indian Succession
Act, 1925 and u/s. 57 thereof many of its provisions apply to Wills made by any
Hindu, Buddhist, Sikh or Jain. The term ‘Will’ has been defined in section 2(h)
of the Indian Succession Act to mean ‘the legal declaration of the intention of
a testator with respect to his property which he desires to be carried into
effect after his death’. It is not necessary that any technical words or particular
form is used in a Will, but only that the wording be such that the intentions
of the testator can be known therefrom.

(Section 73 of the Indian Succession Act) A ‘codicil’ is a supplement by which a testator alters or adds to
his Will. Section 2(b) of the Indian Succession Act defines the term ‘codicil’
to mean ‘an instrument made in relation to a Will and explaining, altering or
adding to its dispositions and shall be deemed to form part of the Will’.
Therefore, a Will is the aggregate of a person’s testamentary intentions so far
as they are manifested in writing duly executed according to law and includes a
codicil.

There is no specific form or legal
requirement about a Will nor is it required to be on stamp paper. The only
legal requirement is that it should be properly witnessed by not less than two
witnesses as explained in detail hereafter.

Every person of sound mind not being a minor
may dispose of his property by a Will. A married woman may dispose by Will any
property which she could alienate by her own act during her life. Persons who
are deaf or dumb or blind can make their Wills if they are able to know what
they do by it. It may be interesting to note that even a person who is
ordinarily insane may make a Will during interval in which he is of sound mind.
A father may by Will appoint a guardian for his child during minority. A Will
or any part of it obtained by fraud, coercion or importunity is void. If a
bequest is made in favour of someone based on deception or fraud, only that bequest
becomes void and not the whole Will.

When a person wants to execute his/her Will,
one of the normal questions which is raised is whether it is necessary to
register the Will. A Will need not be compulsorily registered. There is no rule
of law or of evidence which requires a doctor to be kept present when a Will is
executed (See Madhukar vs. Tarabai (2002) 2SCC 85).

However, if a Will is to be registered, the
Registrar as a matter of procedure requires production of a doctor’s
certificate to the effect that the testator is in a sound state of mind and
physically fit to make his/her Will. It has been held by the Supreme Court that
there was nothing in law which requires the registration of a Will and as Wills
are in a majority of cases not registered, to draw any inference against the
genuineness of the Will on the ground of non-registration would be wholly
unwarranted (See Ishwardeo vs. Kamta Devi AIR(1954) SC 280). In case of Purnima
Devi vs. Khagendra Narayan Deb AIR(1962) SC 567, the Supreme Court has
observed that if a Will has been registered, that is a circumstance which may,
having regard to the circumstances, prove its genuineness. But the mere fact
that a Will is registered will not by itself be sufficient to dispel all
suspicion regarding it where suspicion exists, without submitting the evidence
of registration to a close examination. If the evidence as to registration on a
close examination reveals that the registration was made in such a manner that
it was brought home to the testator that the document of which he was admitting
execution was a Will disposing of his property and thereafter he admitted its
execution and signed it in token thereof, the registration will dispel the
doubt as to the genuineness of the Will.

The Supreme Court in Venkatachala Iyengar
vs. Trimmajamma AIR (1959) SC 443 held that as in the case of proof of
other documents so in the case of proof of Wills it would be idle to expect
proof with mathematical certainty. The test to be applied would be the usual
test of the satisfaction of the prudent mind in such matters. Though in the
same case, the Supreme Court further held that being the non-availability of
the person who signed it there is one important factor which distinguishes a
Will from other documents and observed that in case of a Will other factors
like surrounding circumstances including existence of suspicious circumstances,
if any, should be clearly explained and dispelled by the propounder.

Section 63 of the Indian Succession Act
requires that a Will shall be attested by two or more witnesses, each of whom
has seen the testator sign or affix his mark to the Will or receive from the
testator a personal acknowledgement of his signature or mark. Each witness is
required to sign the Will in presence of the testator. Under law it is not
necessary that the attesting witnesses should know the contents of the Will.

A person can change or revoke his Will as
often as he likes. Ultimately it is the last Will which prevails over earlier
Wills. Even a registered Will can be revoked by a subsequent unregistered Will.
Moreover, it may be noted that u/s. 69 of the Indian Succession Act, a Will
stands revoked by the marriage of the maker and in such a case it will be
necessary for the testator to make a fresh Will.

It is open for a testator to give or
bequeath any property to an executor and such bequest is valid. If a legacy is
bequeathed to a person who is named as an executor of the Will, he shall not
take the legacy unless he proves the Will or otherwise manifests an intention
to act. However, care should be taken to ensure that no bequest is made to a
person who is an attesting witness or spouse of such person as in such a case
while validity of the Will is not affected, such bequest shall be void.

The ancient rule of a share in HUF going by
survivorship does not now apply. A coparcener in a HUF can bequeath his
undivided share in HUF by way of Will.

It may be noted that any bequest in favour
of a person not in existence at Testator’s death subject to a prior bequest
contained in the Will or a bequest in breach of rule against perpetuity is
void. A bequest will be in breach of rule against perpetuity if it provides for
vesting of a thing bequeathed to be delayed beyond the lifetime of one or more
persons living at the Testator’s death and minority of a person who shall be in
existence at the expiration of that period and to whom the thing is bequested
on attaining majority.

These days it
is normal to use the facility of nomination for ownership flats in co-operative
housing societies, depository/demat accounts, mutual funds, shares, bank
accounts, etc. Once a person dies, the nominee gets a right on the asset.
However, it has been held by courts and the legal position is that although the
nominee has easy access to the asset and can get it transferred to his/her name,
the nominee holds it only as a trustee and ultimately the asset would go to the
legal heirs of the deceased under the testamentary succession or as per
applicable rules of the intestate succession, as the case may be.

Although the Indian Succession Act also
applies to testamentary succession of Parsis and Christians, Mohammedans are
governed by their own law and there are several restrictions in their making a
Will.

Tips for drafting

It is known that some chartered accountants
have been drafting legal documents and that such practice is not restricted to
just simple documents like deeds of partnership or deeds of retirement but now
extends to drafting ownership of flat, sale/purchase transactions and even
Wills and Trusts. For the benefit of such chartered accountant friends who
venture to draft Wills, the following tips may be helpful:-

(1)   As mentioned above, there is no specific form
or legal requirement about the Will. However, it is advisable to use clear and
unambiguous language and where names of beneficiaries are to be given, it would
be advisable to give full names, preferably with relationship with the
Testator. Again where any asset is subject matter of the Will, the item should
be clearly indentifiable and proper details of the asset should be given.

(2)   Any obliteration, interlineation or
alteration should be avoided and in case of any such alteration, the same
should be executed by the Testator and the witnesses in like manner as required
for the execution of the Will.

(3)   Care should be taken to ensure that the
attesting witness is one who or whose spouse is not getting any benefit or
bequest under the Will as otherwise the bequest will be void.

(4)   Wills containing bequest of any property to
religious or charitable uses have certain restrictions and need to be avoided.

(5)   Apart from specific bequests and legacies, a
Will should also provide for what happens to the rest and residue of the estate
of the Testator as otherwise whatever is not specifically included would
devolve as per rules of intestate succession i.e. as if there is no Will.

(6)   It is normal to appoint some family elders as
executors possibly out of respect. However, it is suggested that the executors
selected by the testator ought to be persons who are easily available and accessible
and who are able to coordinate and co-operate with each other. Preferably, the
executors should be people who have interest in the estate as beneficiary/ies.

(7)   In case of a Testator who has acquired
citizenship of any other country, the draftsman should keep the applicable laws
of that country in mind before preparing any Will. For instance, Sharia Law
applies to persons who have acquired citizenship in any Middle East country,
and some special provisions will have to be added depending on the local
lawyer’s advice to take care of the legal requirement of each country to make a
valid and effective Will based on the personal law (e.g. Hindu Law) applicable
to the individual. In the same way, foreign domicile of the Testator who holds
Indian citizenship may also need advice from local lawyers.

(8)   While drafting a Will for a person who is
resident in Goa it should be noted that Goa residents are still governed by
Portuguese Law. Therefore, a Will is likely to be challenged if it is not in
conformity with the provisions of the local law.

(9) So far as the Will is in simple form,
any educated person can draft the same. However, if it is proposed to provide
for any complicated provisions for succession planning or any kind of tax
planning by way of Trusts, it will be advisable to leave the drafting to a
competent lawyer. The reason for this piece of advice is to ensure that the
Will does not contain any provision which would in law be void.