The transfer of property from its original owner to a legal successor upon death is governed by the law of succession. India has different laws pertaining to inheritance and they are applied on a case to case basis depending on the parties’ marital status, religion, the tribe or the community to which they belong, place of residence, etc. Testamentary succession is one of the common ways used for estate planning, and is executed through a Will, where the individual states his/her wishes regarding the distribution of their assets or how they should be maintained.

Also Read: What Is The Importance Of A Will In Estate Planning And What Should Be Considered When Drafting One?

What Is Testamentary Succession?

The Hindu Succession Act 1956 recognises the Will as legitimate and enforceable. It is a legal process where an individual can transfer a property by creating a will or a testament. Anybody, whether man or female, can create a will for distribution of assets upon death. The person who makes the will is called the testator. It is crucial to remember that in a testamentary succession, the property is transferred as per the will rather than in accordance with inheritance law. The inheritance law governs the transfer or devolution of property if the Will is void or unlawful.

What Is Testamentary Succession Law?

The Indian Succession Act of 1925 governs the testamentary and intestate successions in India. The most significant aspect of this legislation is that, although it is followed in every Indian state, it only applies to the wills of those who identify as Hindu, Sikh, Buddhist, or Jain.

What Is Indian Succession Act?

The Indian Succession Act of 1925 outlines the parameters for making a will. Property may be transferred by will to adults who are of sound mind. Parents can designate guardians for their minor children in their wills under Section 60. Furthermore, Section 69 states that marital status nullifies previous wills. Christians do not need probate, or court certification, but those from the Parsi community will need if their property is located in a certain jurisdiction.

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According to Section 63, unprivileged wills must be signed or marked by the testator or, in their absence, a proxy. Two witnesses, either the testator in person or by a proxy, must attest. Neither of them must be present at the same time, nor is there a required attestation format. Soldiers, sailors, and pilots may create privileged wills, either written down or orally, with their handwriting acknowledged under Section 66. Attestation is not required, but signature is a must.

What Is Hindu Succession Act?

The Hindu Succession Act of 1956 explains the process of intestate succession and the exceptions for Hindus. It is not applicable to Christians, Jews, Muslims, or Parsis. For instance, Muslims are permitted by Islamic law to dispose of their assets and property.