Succession is the transmission of property belonging to a person at his death to some other person or persons. Succession is regulated by law.
The law relating to succession is only of gradual growth. A law of succession is not needed till disputes arise. The law of succession in modern times is divided into the Law of Testamentary Succession and the Law of Intestate Succession. The law of Testamentary Succession regulates the devolution of the property of a person who dies after having made a Will. The Law of Intestate Succession, on the other hand, regulates the devolution and distribution of the property of a deceased person who has not made a Will.
The Indian Succession Act
The Indian Succession Act 1925 is an Act consolidating the law applicable to Intestate and Testamentary Succession in India. The provisions of the Indian Succession Act are largely based on the principles of the Law of Wills as laid down by British Courts, but adapted to suit the different social conditions of this country.
What is a Will?
A Will means a continuous act of gift up to the moment of the donor’s death. Though revocable in his lifetime, it is until revocation a continuous act of gift up to the moment of death. It then operates to have the property disposed off to the persons designated as beneficiaries. A testament is an institution or appointment of an heir or executor made according to formalities prescribed by law.
A document is said to be a Will only when it is executed with an intention to regulate succession after death. In the absence of statutory requirements, written instruments have been held to operate as wills, in whatever form or with whatever name they might have come into existence.
Definition of a Will
The Indian Succession Act, 1925, defines Will as the legal declaration of the intention of the testator with respect to his property, which he desires to be carried into effect after his death.
A Will is the legal declaration of a man’s intention, which he wills to be performed after his death, or an instrument by which a person makes a disposition of his property to take effect after his death.
Essentials of a Will
There are three essentials of a Will
1. It must be a legal declaration of the intention of the testator i.e. the person who makes the Will
2. The declaration of intention must be with respect to the testator’s property. An authority to adopt given by a deceased to his wife to be exercised by her after his death is not a Will. So also a document appointing a guardian to the minor son after the death of the testator.
3. The document should express a desire that his intentions must be carried into effect after his death. The intention of the testator must be expressed in clear words in order that they might be given effect to.
Characteristics of a Will
A Will is liable to be revoked or altered by the maker at any time when he is competent to dispose off his property. Any clause in a Will that the testator cannot revoke makes the Will void. There can be no suit for cancellation of a Will since a Will is liable to be revoked by the unilateral act of the testator himself.
A testamentary intention is, therefore, ambulatory till death and a Will in its nature is a revocable instrument.
The two characteristics of a Will therefore are:
1. It must be intended to come into effect after the death of the testator
2. It must be revocable
Kinds of Wills
Conditional Will: This is a Will made so as to take effect only on a contingency. The operation of the document may be postponed till after the death of the testator’s wife, for example.
Joint Will: Two or more persons may make a joint Will. It will take effect as if each has properly executed a Will as regards his own property. If a Will is joint and is intended to take effect after the death of both, it will not be admitted to probate during the lifetime of either.
Mutual Will:A Will is mutual when two testators confer on each other reciprocal benefits as by either of them constituting the other his legatee, the is to say, when the executants fill the roles of both the testator and legatee towards each other. Mutual Wills are also called Reciprocal Wills.
Holograph Will: A holograph is a Will entirely in the handwriting of the testator. Naturally there is a greater guarantee of genuineness attached to such a Will. But in order to be valid it must also satisfy all the statutory requirements.
Concurrent Wills: The general rule is that a man can leave only one will at the time of his death. But for sake of convenience a testator may dispose off some properties. e.g., those in one country by one Will and those in another country by another Will. They may be treated as wholly independent of each other, unless there is any inter-connection or the incorporation of one in the other. Such Wills are called concurrent wills.