TESTAMENTARY AND INTESTATE SUCCESSION-II

We have already seen in the previous article how property devolve when the deceased has left a will bequeathing his property to his legal heirs or specific person i.e. inheritance as per the Will of the deceased (testamentary succession). In this article we will see how property devolve when the deceased person dies without making the Will i.e. Intestate Succession of property. Intestate Succession comes in picture when the deceased has not left a Will, whereby the law governing the deceased (according to his religion i.e. personal law) steps in and determines how his estate will devolve. The constitution of India via Entry 5 in List III in Seventh Schedule recognizes the personal laws and deals with areas like will, intestacy and succession. The religion of the deceased person determines the succession to his estate i.e. who will get how much of share of property of deceased. For Eg. The Hindu Succession Act, 1956 prescribes the rules relating to succession applicable to Hindus, Sikhs, Buddhists, Jains etc. Christians are governed by Indian succession act, 1925 for succession purpose. As such, Muslims are governed by Mohammedan Law of Succession.

Law of Succession defines the rules of distribution of property in case a person dies without making a Will. Succession in brief, deals with how property of a deceased person devolves on his heirs. The black’s law dictionary explains Heir to mean a person who, under the laws of intestacy, is entitled to receive an intestate deceased’s property. This property may be ancestral or self-acquired. Intestacy may either be total or partial. There is total intestacy where the deceased does not effectively dispose of any beneficial interest in any of his property by Will. There is a partial intestacy where the deceased effectively disposes of some, but not all, of the beneficial interest in his property by Will. In the event a person dies intestate, his/her assets are distributed as per the mandate of his personal laws.

We have already seen what is Letters of Administration with Will. When there is no Will, one who wants to claim the property of the deceased requires to obtain either a Letters of Administration without Will or Succession Certificate issued by the court. Letters of Administration is an instrument granted by a competent court in order to distribute the assets of the deceased among his heirs according the personal law of the deceased. Succession certificate, on the other hand, is issued to a person claiming the authority to inherit movable property of the deceased including debts, securities and any other movable assets. Letters of Administration and Succession Certificate can be acquired by filing a petition for the same in a District or High Court. The court after reviewing the petition issues a notice i.e. citation to the remaining legal heirs of the deceased and requiring them to raise objection if they have any with regard to such petition. If, within the time frame allowed, no objections are raised and the court is satisfied, it may pass an order to grant a Letters of Administration and Succession Certificate. In the both of these documents the Court specify the movable and immovable property contained in the application.

Intestate Succession among Hindus-

The Hindu Succession Act, 1956 was enacted to amend and consolidate the law relating to intestate succession among Hindus, Buddhists, Jains and Sikhs. It explained as to who shall be considered as govern by this act. The act was further amended in 2005. In 2005 amendment, the daughters were allowed an equal part of the property as with sons. This act not only deals with the order of succession but lays down the general rules as to the order of succession when a Hindu male/female dies intestate. This act also governs rights of full blood and half-blood heir, rights of child in womb, mode of succession of two or more heirs.

The said act has certain conditions under which a person is disqualified to inherit a property. Even if one is legal heir of a deceased and if he is found guilty of a murder or in abetting s murder such a person would be disqualified from inheriting a property. If an heir converts from Hinduism, he or she will be eligible for inheritance but the descendants of that converted heir will be disqualified from receiving the inheritance from their deceased relative, unless they have converted back to Hinduism before the death of the relative. Any heir who is related to an deceased as the widow of a pre-deceased son, widow of a brother, widow of a pre-deceased son of a pre-deceased son, if on the date of the succession opens, has remarried will not be entitled to succeed to the property of the deceased.

In the case of a Hindu Male dies the following persons can make a claim:

First Claim: Class I legal heirs. They are Son, Daughter, Widow, Mother; Son of a pre-deceased son, Daughter of a pre-deceased son, Son of a pre-deceased daughter, Daughter of a pre-deceased daughter; Widow of a pre-deceased son, Son of pre-deceased son of pre-deceased son, Daughter of pre-deceased son of pre-deceased son; Widow of a pre-deceased son of pre-deceased son.

Second Claim: In the absence of Class I heirs, the Class II heirs can make a claim. They are I. Father, II. 1. Son’s daughter’s son, 2. Son’s of daughter’s daughter, 3. Brother, 4. Sister III. 1. Daughter’s son’s son, 2. Daughter’s son’s daughter, 3. Daughter’s daughter’s son, 4. Daughter’s daughter’s daughter IV. 1. Brother’s son, 2. Sister’s son, 3. Brother’s daughter, 4. Sister’s daughter, V. Father’s father, Father’s mother.

The act provides that when there are more than one heirs in one entry of class then they shall inherit equally. In the absence of heirs of Class I and Class II, the property devolves on the Agnates and in the case of absence of heirs of Class I and Class II, Agnates, property devolves on the Cognates.

A person said to be a ‘Agnate’ of the other if the two of them are related by blood or adoption wholly through the males. Similarly, a person is said to be the Cognate of the other if the two of them are related by blood or adoption, but not totally through males i.e. there has to be some intervention by a female ancestor somewhere.

In the case of a Hindu female dies the following persons can make a claim:

First Claim– The Sons, Daughters, Husband (including the children of any pre-deceased son or daughter) can make a claim;

Second Claim– In the absence of the first claimants, the heirs of the husband can make a claim;

Third Claim– In the absence of the first and second claimants, the mother and father can make a claim;

Fourth Claim- In the absence of the above-mentioned claimants, the heirs of the father;

Fifth Claim — And even in the absence of the heirs of the father, the heirs of the mother can make a claim.

Any property inherited by a female Hindu from her father or mother shall devolve in the absence of any son or daughter of the deceased (including the children of any per-deceased son or daughter) not upon the other heirs referred as above but upon the heirs of the father.

Any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred as above but upon the heirs of the husband.

In the case a Hindu dies intestate and without any heirs as above-mentioned, the property devolved to the Government under due procedure of the law subject to all the liabilities and obligations.

Intestate Succession among Muslims-

The Mohammedan Law of succession is totally based on Pre-Islamic customary law of succession. The law of succession is a unique aspect of Mohammedan Law though it is complicated and not easily understandable yet it is an interesting piece of Mohammedan Law. The Sunni and Shia systems differ a lot in matters of succession and hence resulting into the emergence of two different systems of succession.

In case a person governed by the Mohammedan Law dies intestate, the following persons can make a claim: Sharers and Residuaries. Sharers are basically those heirs entitle to a certain specific share whereas Residuaries are those that acquire the remainder of the property. In the absence of sharers and residuaries, a class of persons known, as Distant Kindred can make a claim to the property of the deceased. The Muslim Law does not differentiate between immovable and movable property, there are no ‘kinds’ of property, hence, at the time of the death of a person, all the property that belonged to him shall divided amongst his heirs.

Generally, the Sunni law is led by the Hanafis because in India most of the Sunni are Hanafis, so we will discuss the Hanafis law of inheritance. The Prophet introduced reforms in the Pre-Islamic customary principles of succession. In Quran share of legal heirs have been specified and they are entitled to receive a fixed share allotted to them in a certain order of preference and mode of succession. Sharers are twelve in numbers. Among the 12 Quranic heirs, notable, as many as nine are women. After the payment of funeral expenses, debts and legacies, the first step is to ascertain which of the surviving relations belong to the class of sharers and which again are entitled to a share of the inheritance and then to proceed to assign their respective shares. The Quranic heirs or sharers and their specified shares, When that share entirely excluded, When share may be affected, and How the share is affected is explained in Quran.

The Shia system (unlike the Hanafi) shuffled all the heirs, and then classified them for order of succession. If the deceased leaves only one heir, the whole property goes to him. If the deceased leaves more than one heir, then the first step is to assign shares to the heirs belonging to sharer class.

In the Muslim law, distribution of property can be done in two ways- a) per capita, b) per strip distribution. The per capita distribution methodology is majorly applied in the Sunni law whereas, the per strip distribution is adopted by the Shia law. According to the per capita distribution, the estate left over by the ancestors is distributed equally amongst all his heirs. On the other hand, in the strip share process a heir gets inheritance according to the strip they belong, the branch and the number of persons in that branch.

Doctrine of Representation- It states that if a son dies before his father, then his children shall not be entitled to any share in the property. Therefore, it is claimed that the nearer heir excludes the remote heir from inheritance. The concept of doctrine of representation though totally alien in the Sunni Law is not so in the Shia Law. A simple illustration will explain this position. The father F dies leaving three grandsons one by the eldest son and two by the other, as his only heirs. Under the Sunni law each of them will inherit as a grandson and shall take one-third. They will take the inheritance per capita and not per stripes. But under the Shia law the grandson by the other son will get a quarter each, dividing equally the moiety assigned to their father.

In case where any Muslim person dies without any heir, then his property shall go to the government.

Intestate Succession among Christians, Parasis and Jews-

The Christian law of succession is governed by the provisions in the Indian Succession Act, 1925. The smaller communities like Christians, Parsis, Jews etc. are covered by this act which is applicable on intestate as well as testamentary succession. Provisions of the Indian Succession Act, 1925 provides that a Christian’s legal heirs are husband, wife or the kindred of the deceased. Provisions of this act provides that there is no differentiation between 1. Deceased person’s relatives of father’s side and of mother’s side, 2. Relatives who are have full blood relation and are related to him through half blood, 3. Those who were already born during the lifetime of the deceased person and those who were only conceived in the womb, but later born alive. This act also governs the right of succession to the widow and widower, children and lineal descendants. The intestate succession i.e. non testamentary succession comes under part 5 of the Indian succession act. The provision further provided that when a person dies without leaving a Will, the shares to be equally distributed among their spouse and heirs.

Conclusion-

In order to avoid the complications and consequences of intestate succession, the people in India should adopt to estate planning. Estate planning has multifold benefits such as, it avoids any dispute within the family, guarantees smooth transition of assets from the deceased to the heirs.