The Indian Succession Act 1956 is an act to regulate the law relating to unwilled succession among Hindus, Jains, Sikhs and Buddhists. An act by Parliament of India which governs Intestacy, which means a condition or circumstance where a person dies without having declared a legal will and determines the procedure of handling of ‘estate’ of the deceased persons. It also called the law of descent and distribution and determines the entitlement(s) of the property under the rules of inheritance. Also it is to be noted that the Act has no role to play in case there is a legal will existing and rules out proper dissemination of properties along with the future income generating from them.
It is important to understand few terms before getting into the details of the Act,:
- Will: A Will, on the other hand, means a declaration made by a person specifying the way of distribution of his property and estate (if any), to the legal heirs or to any other person as hemay prescribe, upon his death. It can be revoked or altered by the maker of it any time he wants and possess the right to null it.
- Testator – The person who makes a will is also known as a testator. A Testator may or may not register the Will.
- Beneficiary: Any person capable of holding property can be beneficiary under a will and therefore a minor, lunatic, a corporation, a Hindu deity or any other juristic person can be a beneficiary.
As mentioned above, the Act applies to:
- Hindu, Buddhist, Jain or Sikh
- And their legitimate children, one of whose parents or both of whose parents are either Hindu, Buddhist, Jain or Sikh.
- Any person who is convert or re-convert to the Hindu, Buddhist, Jain or Sikh.
- Any person who is not a Muslim, Parsi, Christian or Jew by religion.
Also the Act lays separate rule for Male Succession and Female Succession separately.
The property of a Hindu Male goes to:
- Class I heirs namely Son, Daughter, widow, mother (equal share, since priority heirs), son / daughter of a predeceased son/daughter, widow of a predeceased son, son/daughter/widow of a predeceased son of a predeceased son( one share each after distribution to priority heirs)
- Class II heirs which includes Father, Son’s daughter’s children and Siblings.
- Daughter’s grandchildren, Children of Siblings, Father’s parents, Father’s widow (step-mother), Brother’s widow, Father’s siblings Mother’s parents, Mother’s siblings.
The property of Hindu female goes to (in order of priority):
- her sons and daughters (including the children of any pre-deceased children) and husband;
- the heirs of her husband
- her parents
- the heirs of her father
- upon the heirs of her mother
In case a Hindu female dies intestate without declaring her will, the property inherited be her from her parents shall go to the heirs of her father only and not on the class of heirs specified above. Similarly, the property inherited by her husband or father-in-law shall go the heirs of her husband, in case of intestacy.
Below restriction have been imposed under the act in certain cases:
- No transfer can be made to a person who is not in existence at the time of testator’s death.
- No transfer can be made to a person who has not biologically came into this world. So if A has transferred his property to his son B and has willed to further transfer it to B’s son for life (who is not born then), the same is not possible as B’s son is not in existence at testator’s death and is void.
- No transfer can be done to a person that may delay beyond the lifetime of a survivor and the minority of some person who shall be in existence at the expiration of that period. A perpetual transfer is void.
- If a will is made to a class of persons, some of whom it is inoperative by reasons of the fact that the person is not in existence at the testator’s death or to create perpetuity, such legacy shall be void in regard to those persons only and not in regard to the whole class.
- In case any of the above conditions where inheritance is void, any endowment contained in the same will and intended to take effect after or upon failure of such prior bequest is also void.
- In case any future income is to be earned from the property transferred by the testator, no accumulation of the income can be done from the estate so inherited, for more than 18 years, and after the expiry of the said period, the property shall be deemed to have been disposed.
Revocation/Loss of will
A will shall be deemed to have been revoked in case if:
- It is re-executed by way of another will by the testator.
- It is burn, torn or destroyed in any other manner, whatsoever.
- It is declared in writing that the testator wants to revoke the will.
- It is lost or if the will was seen with the testator but cannot be found after this death.