Testamentary Succession

Introduction

Testamentary succession deals with transfer of property through a will after the death of a person. In India, the general law is governed by the Indian Succession Act, 1925. However, Muslims are governed by their personal law, though some procedural rules of the Act apply.

Meaning / Definition

A will is a legal declaration made by a person (testator) about how his property should be distributed after his death. It takes effect only after the death of the testator.

It allows a person to decide the distribution of his separate property. Under Hindu law, even a coparcener (joint family member) can will away his share.

Modes or Types

Privileged Will

• Applicable to soldiers, airmen, or mariners engaged in war or active service
• The person must be at least 18 years old

Features

• Can be made orally before two witnesses

• If written by the testator, it need not be signed or attested

• Even verbal instructions can be valid if given before witnesses

• A written document prepared as per instructions is valid

• A verbal will becomes invalid after one month if the testator is still alive and no longer in such service

Unprivileged Will

• Applies to all other persons
• Must follow formal legal requirements such as:
  • Writing
  • Signature of testator
  • Attestation (verification) by witnesses

Revocation of Will

A will is always revocable (can be cancelled or changed). A testator is not bound by his earlier will.

Modes of Revocation

• Making a new will (subsequent will)
• Written declaration showing intention to revoke
• Destruction of the will

Lapse of Legacy

• A legacy (gift in a will) fails if the person receiving it (legatee) dies before the testator
• The property then becomes part of the remaining property (residue)

Ademption of Legacy

• Happens when the specific property mentioned in the will no longer exists at the time of death

• If the property is:

  • Sold
  • Destroyed
  • Converted into another form

• Then the gift fails

Distinction / Comparison

Lapse vs Ademption

• Lapse:

  • Occurs when the legatee dies before the testator
  • Gift fails due to absence of beneficiary

• Ademption:

  • Occurs when the property itself is not available
  • Gift fails due to absence of subject matter

Practical Example

A person writes a will giving his car to his friend. If the friend dies before him, the gift lapses. If the person sells the car before his death, the gift is adeemed because the property no longer exists.

Summary

• Testamentary succession is transfer of property through a will after death
• A will takes effect only after the testator’s death
• Privileged wills have relaxed rules for soldiers and similar persons
• Unprivileged wills must follow strict formalities
• A will can be revoked at any time
• Lapse occurs when the beneficiary dies before the testator
• Ademption occurs when the property no longer exists