Explained: Succession of property via Testament

Jan28,2021 #Succession #Testament #Will

Deergh Uppal

In simple terms, as per the applicable rules of law, it is known as the succession of property by a Will or Testament. Any male or female will, as per Hindu law, makes a will to transfer his or her property or assets to someone. The will is regarded as legally legitimate and enforceable.

A significant point to remember here is that the transfer of property happens as per provisions stated in the Will and not as per the inheritance law. However, whether the will is null or unconstitutional, the sale or transfer of property occurs in compliance with the rule of inheritance. Alternatively, the right of inheritance is often referred to as testamentary succession.

  • Important Characteristics of a valid will
  1. It is a written document reflecting the specific wishes or desires of the testator with regard to the transfer of his or her property or properties.
  2. It may be produced by any person who is capable of entering into an agreement aged 18 years or above.
  3. It is not possible for a person under the influence of alcohol or anxiety or affected by sickness who can be defrauded to create a Will.
  4. No particular format of writing a will is required by the Indian Succession Act, 1925.
  5. The testator’s true purpose is not altered by slight accidental errors in a Will-error in name, spellings or property information.
  6. The testator’s true purpose is not altered by slight accidental errors in a Will-error in name spellings or property information.
  7. The will that should be countersigned by two witnesses should be signed by the testator. In situations where the testator is unable to sign, the testator’s thumb impressions should be taken.
  8. At the bottom of the page or at the end of the content of the Will, the signature of the testator should appear.
  9. The recipients should not be the witnesses of the Will themselves.
  10. A Will shall only enter into effect after the death of the testator.
  11. And finally, it is not necessary to build and record the Will document on a stamp paper. It can also be written on plain paper by the tester.
  • Why is having a Will important?

Each person wishes that even after his or her death, his legal heirs remain a part of the cohesive family and that there are no disputes over property matters. Equal division of property is a delicate matter, after all. In today’s times, if done right, it will build long-lasting relationships, and if done otherwise, it can forever sever relationships. It’s very convenient to make a fair will for this reason. In relation to the properties that his legal heirs will carry out after his or her death, the tester must clearly document his or her wishes. The Will must state explicitly how the property of the testator will be transferred, to whom it will be transferred, how much asset share will be given to different heirs and in what quantity.

  • Which law governs Testamentary Succession?

In India, the Testamentary succession, including the intestate succession, is regulated by the Indian Succession Act 1925. Most notably, this law encompasses the entire of India, but is only applicable by faith to the wills and codicils of Hindus, Sikhs, Buddhists and Jains. Also, in the Hindu Succession Act, 1956, the intestate succession and all its exceptions are codified for Hindus. It is not acceptable in Muslims, Christians, Jews and Parses.

  • Judicial Pronouncements

Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36.

Facts – The disagreement involved ancestral and self-acquired properties and the retrospective implementation of the amendment act. In the petition lodged by the Respondent in the Supreme Court, a lawsuit was brought before the Belgaum Trial Court, claiming partition and possession of certain properties.

All of those pleadings which were not per se relevant to the case were considered by the Trial Court, which led to a delay in the declaration of the judgment. Although the exact date of the verdict of the Trial Court is unknown, the case was filed in 1992 and the first appeal to the High Court was filed in 2007, almost immediately after the verdict of the Trial Court.

Judgement – As the partition was not affected by the partition deed or some form of court order, the High Court held that it would be considered to be accepted as a notional partition and hence Section 6(5) of the Amendment Act could not be recognized as a notional partition. The Supreme Court distinguished between the retrospective application of the Act by the High Court in the present case and the retrospective application of the Act in general. The High Court’s decision was reversed by the Supreme Court.

Kavita Kanwar v. Mrs Pamela Mehta & Others 2020 SCC OnLine SC 464.

Facts – The executor and significant beneficiary of the will was one daughter, Kavita Kanwar, even though she had not lived with the testatrix for more than 20 years. Pamela Mehta, the other daughter, was widowed with a child, lived in the same building, and worked as a cancer caregiver for the testatrix. Aside from the uncertain way that Ms. Kanwar should grant her a place of residence in the bequeathed land, she did not receive material bequests. Prithviraj Mamik, the uncle, also claimed to have good relations with the testatrix, but obtained only some nominal bank balances. The key wealth consisted of land and buildings in Defense Colony, New Delhi, owned by Ms. Kanwar on the ground floor, while the testatrix owned the remainder. Ms. Kanwar filed an appeal, which was found true by the Court, for the will to be proven, i.e.

The Trial Court, which considered some unexplained circumstances concerning the will, dismissed the probate application (further detailed below). Ms. Kanwar then lodged an appeal, unsuccessfully before the High Court of Delhi, before the Supreme Court, and then filed a Separate Leave Petition, which decided that the conditions did not warrant the award of a probate.

Key Issues discussed by the Supreme Court

Form of the Will

It was suspicious to the Supreme Court that portions of the will that were handwritten had signs of pencil lines under it and pointed to the writing of the testatrix as per dictation. While the testatrix was not computer-literate, other elements were typed out. In addition, certain parts of the will included technical and legal terms that indicated that a lawyer had written the will. The counsel, however, was not to be found, which generated a presumption that the testatrix, who had not finished her schooling, may not have thoroughly grasped the substance of the will. In regards to a missed page in the will, another question that emerged, in relation to which Kanwar made inconsistent claims at different points in the proceedings.

Unreliable Witnesses

The Supreme Court found the witnesses who testified were inaccurate. One of the witnesses acknowledged that he barely knew the testatrix and was called by Kanwar to the testatrix’s residence solely to observe the execution of the will, while Ms. Kanwar obtained a payment of Rs. 25,000 from the daughter of the other witness. In accordance with the signing of the will, there were also contradictions in the declarations made by different parties, including the witnesses.

Role Played by Executor/Beneficiary in Signing of the Will

To the exclusion of the other brothers, Kanwar played an active role in the signing of the will. She also obtained a significant gain under it, which was held in prior decisions of the Supreme Court to establish a presumption in favor of situations of doubt. This presence was found especially odd because, although Ms. Kanwar had not lived with her for many years, the other daughter lived in the same building and was a caregiver for the testatrix. In the testimony of Ms. Kanwar, who claimed that she was not informed that the will was being signed on the day specified, there were also contradictions, although the witnesses claimed otherwise.

Exclusion of Beneficiaries

The unnatural and unjust allocation of properties under the will was involved, such as the widowed daughter having earned absolutely nothing while being a caregiver for the testatrix and in daunting circumstances. There were no specific orders to be supplied to her by Kanwar about the home. Nor has the Court been pleased with the care of the boy. Therefore, while Hindu testators have testamentary independence in relation to self-acquired properties, i.e. the right to bequeath (or not bequeath) property to someone of their preference, the Supreme Court held that if the Court’s conscience is not fulfilled after bringing all the factors together regarding the will representing the last wishes of the testator, then the will cannot be given the approval of the Court.

To conclude, Laws of Succession relate to legal principles of distribution of assets of a deceased individual. These include the order in which one person in preference of any or one person after another or any one person in particular share with any other person succeeds to the property/estate of the deceased person. Corporate persons having perpetual existence are not covered in this and have separate laws relating to Winding up, Reorganization and Closure.

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