TESTAMENTARY SUCCESSION UNDER HINDU LAW
The general law of the land for regulating testamentary succession to the separate property of an Indian is the Indian succession Act,1925. The Hindu succession Act,1956 is related to the succession and inheritance of both succession and inheritance. This Act is a combination of all aspects of Hindu succession and brings them into its ambit. Later, some of the parts of this Act was amended in 2005 by the Hindu succession (Amendment) Act, 2005.
A will or testament is a legal document that expresses a persons i.e. testator wishes as to how to manage his property until its final distribution. Generally , a will is a legal declaration of the testator regarding his property which he desires to take effect after his death. It is used as a device in which the owner of property make a disposition that is to take effect after his death. Under this Act, the person has the power to make a will or testament of his own property.
Section 30 of the Hindu succession Act deals with testamentary succession. As per this section, any Hindu male may dispose of by will or other testamentary disposition any property which is capable of being so [disposed of by him or by her], in accordance with the time being in force and applicable to Hindus.
Classification of wills:
The will of the testator can be classified into many types. They are
- Privileged will
- Unprivileged will
- Conditional will or contingent will
- Joint will
- Mutual will
- Concurrent will
Section 65 of the Indian succession Act says that a will made by a soldier or a airman or a mariner when he is in actual service and is engaged in actual warfare, would be a privileged will.
An unprivileged will can be revoked by the testator by another will or by writing declaration with the intention to revoke the same and execute in the manner in which an unprivileged will can be executed under this Act or by burning, tearing or destroying of the same by the testator or by some other person in his presence and by his directions with the intention to revoke the same.
Conditional or contingent will :
A will expressed to take effect only in the event of the happening of some condition or contingency is called a conditional or contingent will. If the contingency doesn’t work or the condition fails, the will is not legally enforceable,
The conditional will becomes invalid if the condition imposed is invalid or contrary to law.
A joint will is a testamentary instrument in which two or more persons agree to make a conjoint will.
The joint will cannot be enforced during the life time of either. So, the joint will is intended to take effect after the death of both persons.
It can be revoked at any time by either of the testators during their joint lives or after the death of one, by the surviving testator.
A will executed by two or more testators as as ingle document duly executed by each testator disposing of his separate properties or his joint properties is not a single will.
It operates on the death of each and is in effect for two or more wills. On the death of each testator, the legatee would become entitled to the properties of he testator who dies.
A will is mutual when two testators confer upon each other reciprocal benefits by either of them constituting the other his legatee. But when the legatees are distinct from the testators, there can be no position for mutual wills.
The concurrent will can be executed by the testator by disposing some of his properties in one country by one will and the other properties in another country by the separate will,
If a document is deliberately executed with all due formalities purporting to be a will, it will still be nullity if it can be shown that the testator did not intend it to have any testamentary operation, but was to have only some collateral object. It must be understood that intention to make will is essential to the validity of a will.
The wills that are written entirely in the handwriting of the the testator is called holograph wills.
Advantages of making a will:
Different wills can be executed for different properties.
It can be easily revoked by following requisite procedure.
Discretionary trust can be created by will for tax benefit.
Capital gain on transfer of capital assets is avoided by giving the property by way of will as against transferring the same during the testator’s life time.
It enables the testator to give the property to anyone he desires as against mandatory provisions of section 8( in case of male) or section 15 ( in case of female) under Hindu Succession Act.
For Onerous Bequest, legatee has to take both legacy and the obligation or neither. As per section 122, he cannot accept only the beneficial bequest and reject or disown the obligation.
On conversion to Islam, convert is to be governed by Mohammedan law. Other converts as well as reconverts to Hinduism would be governed by Hindu law and the provisions of the Indian Succession Act will apply to them to the same extent as to other Hindus.
Discretionary trust created by will:
Discretionary trust by will is the most commonly mode of tax planning by reason of the second exception to section 164 of the Income Tax Act.
Section 164 provides that where income is receivable under a trust declared by will he maximum marginal rate is not applicable and only the appropriate rate will be attracted on the income or wealth on such a discretionary trust. Thus, it is most advantageous to crate a discretionary trust as regards income left by a testator to a group of legatees.
Applicability of law of succession:
The law of succession defines the rules of devolution of property in case a person dies without making a will. These rules provide for a category of persons and percentage of property that will devolve on each of such persons.
This article explored some basic terms and definitions used in the Hindu Succession Act, 1956. 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. Lastly , this article also explored the 2005 Amendment to this Act, which brought much needed protection to women rights regarding property.
Author: sathiya v,
Dr.Ambedkar Law university, chennai