The Indian Succession Act, 1925

Some Important features:

The personal law under the Indian Succession Act is simple and uncomplicated as

compared to the personal laws of the Hindus and the Muslims. However, here too any

property that devolves through Wills, or any inherited property is not registered or

recorded in most instances

Testamentary Succession

Meaning of will:

As per Section 2 (h) of Indian Succession Act, 1925 "will" means 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.

‘Codicil’ means an instrument made in relation to Will and explaining, altering or

adding to its dispositions and is deemed to form part of the Will — Section 2(d) of

Indian Succession Act, 1925. (Competency required for making a will is also

applicable for making of a codicil)

Who can make a Will or Codicil?

Every person of sound mind, not being minor may dispose of his property by Will. As

a general rule, until, the contrary is established, a testator is presumed to be sane and

to have a mental capacity to make valid Will. However no person can make Will

while he is in a state of mind arising from intoxication or from illness or from any

other cause such that he does not know what he is doing.

Section 59 in the Indian Succession Act, 1925

Every person of sound mind not being a minor may dispose of his property by will.

Explanation 1- A married woman may dispose by will of any property which she

could alienate by her own act during her life.

Explanation 2- Persons who are deaf or dumb or blind are not thereby incapacitated

for making a will if they are able to know what they do by it.

Explanation 3- A person who is ordinarily insane may make a will during interval in

which he is of sound mind.

Explanation 4- No person can make a will while he is in such a state of mind,

whether arising from intoxication or from illness or from any other cause that he does

not know what he is doing.

Registration of Wills: According to the Section 18 of the ‘Registration Act, 1908’ the

registration of a Will is not compulsory. Once a Will is registered, it is strong legal

evidence that the proper parties had appeared before the registering officers and the

latter had attested the same after. The process of registration begins when a Will

instrument is deposited to the registrar or sub-registrar of jurisdictional area by the

testator himself or his authorised agent. Once the scrutiny of Will instrument is done

by the registrar and registrar is satisfied with all the documents then registrar will

make the entry in the Register-Book by writing year, month, day and hour of such

presentation of the document and will issue a certified copy to the testator. In case if

registrar refuses to order Will to be registered then testator himself or his authorised

agent can institute a civil suit in a court of law and court will pass decree of

registration of Will if court is satisfied with the evidence produced by the plaintiff.

Essential Characteristics of Will are:

(a) The document must be in accordance with the requirements laid down under

section 63 of Indian Succession Act, 1925; i.e., executed by a person competent to

make Will and attested as required under the Act.

(b) The declaration should relate to the properties of the testator, which he wishes to

bequeath.

(c) The declaration must be to the effect that it operates after the death of Testator and

is revocable during his life time.

(d) After the Indian Succession Act, 1925, Wills (except made by Mohammedans)

should be made in writing.

Types of Wills

Under the Indian Succession Act, Will can be Privileged Will or Unprivileged Will.

1. Privileged Wills: 

As it can be understood from the word privilege provided to certain persons. A

privileged Will is one which is made by any soldier, airman, navy persons, mariner

who are willing to dispose of their estate during their course of employment. A soldier

includes officers and all other rank officers of service but does not include a civilian

engineer employed by the army, having no military status. A soldier while making an

instrument of ‘Will’ must have attained the age of 18 years and where a will made by

the soldier is in the oral form, will be valid only for a month though a written Will

always remain operative. A privileged Will may be revoked by the testator by an

unprivileged Will or codicil, or buy any act expressing an intention to revoke it and

accompanied by such formalities as would be sufficient to give validity to a privileged

Will, or by the burning, tearing or otherwise destroying the same by the testator.

2. Unprivileged Wills: 

Wills executed according to the provisions of ‘Section 63’ of the ‘Indian Succession

Act, 1925’ are called Unprivileged Wills. An unprivileged Will is one which is

created by every testator not being a soldier, airman, mariner so employed. An

unprivileged Will like Codicil can be revoked by the testator only by another Will or

by some writing declaring an intention to revoke the same and to be executed in the

manner in which an unprivileged Will can be executed under the 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 of revoking the same.

Probate:

Probate is a certificate granted under the seal of Competent Court, certifying the Will

(a copy whereof is annexure thereto) as the Will of the testator and granting the

administration of the estate of the deceased in accordance with that Will to the

executor named under the Will. It is the copy of the will which is given to the

executor together with a certificate granted under the seal of the court and signed, by

one of the registrars, certifying that the will has been proved. The application for

probate shall be made by petition along with copy of last Will and testament of the

deceased to the court of competent jurisdiction. The copy of the will and grant of

administration of the testator’s estate together, form the probate. It is conclusive

evidence of the validity and due execution of the will and of the testamentary capacity

of the testator. A probate is obtained to authenticate the validity of the will and it is the

only proper evidence of the executor’s appointment. The grant of probate to the

executor does not confer upon him any title to the property which the testator himself

had no right to dispose off which did belong to the testator and over which he had a

disposing power with a grant of administration to the estate of the testator. Probate

proceedings cannot be referred to Arbitration. The probate court (whether it is the

District Court or High Court) has been granted and conferred with exclusive

jurisdiction to grant probate of a Will of the deceased.

Effect of grant of probates: A probate granted by a competent court is conclusive

evidence of the validity of a Will until it is revoked and no evidence can be admitted

to impeach it except in a proceeding to revoke the probate. However, it only

establishes the legal character of the executor and in no way decides the title or even

the existence of the property devised. The grant of the probate decides only the

genuineness of the Will and the executor’s right to represent the estate.

The grant of a probate is conclusive evidence of the testamentary capacity of

the person who made the Will.

A probate is conclusive as to the genuineness of the Will and appointment of

the executors.

Once a probate is granted, no suit will lie for a declaration that the testator was

of unsound mind.

Probate is conclusive as to the representative title of the executor.

Letters of Administration

A letter of administration can be obtained from the Court of competent jurisdiction in

cases where the testator has failed to appoint an executor under a Will or where the

executor appointed under a Will refuses to act or where he has died before or after

proving the Will but before administration of the estate.

Letters of Administration are not always necessary in cases of intestacy of Hindus,

Mohammedans, Buddhists, Sikhs, Jains, Indian Christians or Parsis. Letter of

Administration are always necessary where a person (governed by the Indian

Succession Act) dies intestate.

To whom can a letter of administration be granted:  Under the Indian Succession

Act, 1925, a letter of administration can be granted to any person entitled to the whole

or any part of the estate of the deceased person. However, it cannot be granted to a

minor, a person of unsound mind, or to association of individuals, unless it is a

company that satisfies the conditions stipulated by the government.

A letter of administration cannot be granted till the expiration of fourteen days from

the date of the testator's death.

Succession Certificate

In case, where grant of Probate or Letters of Administration is not compulsory,

Succession Certificate can be granted by the Court with respect to any ‘debt’ or

‘security’ to which a right is required to be established by Letters of Administration or

Probate and for this purpose ‘security’ means Government Securities, shares, stocks

and debentures in companies and incorporated institutions, debentures or securities

issued by or on behalf of local authorities and any other security which the State

Government may notify.

It is suggested to go through class notes also.