Class Notes on Family Law II – Unit V (2nd Sem / 3 year LL.B)

Family Law II Unit V Class Notes: Wills, Succession, and Family Courts

Testamentary succession in India provides the legal mechanism through which an individual directs the disposal of their property to take effect after death. These Family Law II Unit V class notes provide structured analysis for 2nd Semester / 3-Year LL.B students covering wills under the Indian Succession Act, 1925, probate procedures, the Uniform Civil Code, and the Family Courts Act, 1984.

Understanding testamentary principles requires examining the execution, revocation, and interpretation of wills alongside broader constitutional directives governing personal laws in India.

1. Concept and Classification of Wills

A will is the legal declaration of the intention of a testator with respect to their property which they desire to be carried into effect after their death (Section 2(h) of the Indian Succession Act, 1925). A codicil is an instrument made in relation to a will, explaining, altering, or adding to its dispositions, and is deemed to form part of the will (Section 2(b)).

Privileged and Unprivileged Wills Under Indian Succession Act

The statute classifies wills into two primary categories with distinct execution requirements:

A. Privileged Wills (Sections 65 and 66)

A privileged will is a will executed by a testator who is:

1. A soldier employed in an expedition or engaged in actual warfare;
2. An airman so employed or engaged; or
3. A mariner being at sea.

Due to the perils and urgent circumstances of military service, privileged wills enjoy relaxed execution formalities:

• They may be written entirely by the testator without signature or attestation;
• If written by another person, they must be signed by the testator or written under their direction;
• They may be made orally before two witnesses; however, an oral privileged will becomes invalid if the testator remains alive for one month after making the oral declaration; and
• Written instructions given by a qualifying testator for preparing a will can operate as a valid will upon their death even if the formal document was never finalized.

B. Unprivileged Wills (Section 63)

Every person not qualified to make a privileged will must execute an unprivileged will in accordance with the mandatory formalities of Section 63:

1. The testator must sign or affix their mark to the will, or have it signed by another person in their presence and by their direction;
2. The signature or mark must be positioned so that it appears intended to give effect to the writing as a will; and
3. The will must be attested by two or more witnesses, each of whom must have seen the testator sign or received a personal acknowledgement of the signature from the testator. The attesting witnesses must sign in the presence of the testator, though not necessarily at the same time.

These distinctions between privileged and unprivileged wills Indian Succession Act reflect the balance between preventing testamentary fraud and accommodating frontline exigencies.

2. Revocation and Revival of Wills

Revocation of Wills (Section 70)

A will is inherently revocable during the lifetime of the testator. Under revocation of wills Section 70, an unprivileged will or codicil can only be revoked by:

• Marriage of the Testator (Section 69): Revokes any will previously made, subject to specific personal law exceptions;
• Subsequent Will or Codicil: Executing a later valid testamentary instrument that expressly or impliedly revokes earlier dispositions;
• Instrument of Revocation: Executing a formal written declaration of intention to revoke, executed with the same formalities as a will; or
• Physical Destruction: Burning, tearing, or otherwise destroying the document by the testator, or by some person in their presence and by their direction, with the intention of revoking it (animus revocandi).

Revival of a Revoked Will (Section 73)

A revoked will or codicil cannot be revived except by:

1. Re-execution with all mandatory statutory formalities; or
2. Execution of a subsequent codicil showing an unequivocal intention to revive the revoked instrument.

When a will that has been partly revoked and afterwards wholly revoked is revived, such revival does not extend to the parts revoked before the whole revocation unless a contrary intention is expressed.

3. Statutory Rules Restricting Testamentary Dispositions

The Indian Succession Act imposes several statutory restrictions to prevent property from being tied up indefinitely:

Bequest to Unborn Persons (Section 113)

Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior interest created by the same will, the bequest is void unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.

Rule Against Perpetuity (Section 114)

No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's decease and the minority of some person who shall be in existence at the expiration of that period, and to whom the bequest is to belong.

Bequest on Failure of Prior Interest (Section 116)

Where a bequest in favor of a person or class is void under Section 113 or 114, any subsequent bequest contained in the same will intended to take effect after or upon the failure of the prior bequest is also void.

Direction for Accumulation (Section 117)

A direction in a will that the income arising from property shall be accumulated is void to the extent it exceeds 18 years from the death of the testator, except where directed for paying debts, providing portions for children, or preserving bequeathed property.

Bequest for Religious and Charitable Uses (Section 118)

Section 118 historically prohibited a person having a nephew, niece, or nearer relative from bequeathing property to religious or charitable uses unless executed twelve months prior to death and deposited in safe custody. In the landmark decision of John Vallamattom v. Union of India ((2003) 6 SCC 611), the Supreme Court struck down Section 118 as unconstitutional and violative of Article 14, removing this discriminatory restriction on Christian testators.

4. Classification of Legacies

5. Probate and Letters of Administration: Estate Governance

The statutory mechanisms for probate and letters of administration provide court-certified validation of legal representation and estate administration:

• Probate (Section 2(f)): The copy of a will certified under the seal of a court of competent jurisdiction with a grant of administration to the estate of the testator. Under Section 222, probate can be granted only to an executor named in the will.
• Letters of Administration (Section 218 & 219): Granted by the court to an administrator when the deceased died intestate or where a will fails to name an executor or the named executor renounces probate.
• Succession Certificate (Section 370): Issued to facilitate the collection of debts and securities due to a deceased person, providing conclusive indemnity to debtors paying the certificate holder.

The grant of matrimonial and succession statutes in family law operates as a judgment in rem under Section 41 of the Indian Evidence Act, establishing conclusive proof of the legal character and validity of the testamentary instrument against the entire world. These rules intersect with broader statutory interpretations of familial obligations across personal law jurisdictions.

6. Uniform Civil Code: Constitutional Mandate and Debate

Article 44 of the Constitution of India

Article 44, situated within the Directive Principles of State Policy (Part IV), states: "The State shall endeavour to secure for the citizens a Uniform Civil Code throughout the territory of India."

The objective of the Uniform Civil Code Article 44 Constitution is to replace fragmented, religion-based personal laws with a unified legal framework governing marriage, divorce, maintenance, succession, and adoption for all Indian citizens.

Key Supreme Court Rulings on Uniform Civil Code

1. Mohd. Ahmed Khan v. Shah Bano Begum (1985): The Supreme Court emphasized that Article 44 remained a dead letter and urged Parliament to enact a common civil code to protect vulnerable divorced women.
2. Sarla Mudgal v. Union of India (1995): The Court held that a Hindu husband cannot convert to Islam solely to practice polygamy without dissolving his first marriage, reiterating the urgent necessity for a uniform personal law.
3. John Vallamattom v. Union of India (2003): The Apex Court pointed out that common civil laws encourage national unity and remove discriminatory statutory provisions.
4. Shayara Bano v. Union of India (2017): The Court declared instantaneous triple talaq unconstitutional, affirming that personal laws must conform to fundamental rights under Articles 14, 15, and 21.

Arguments Surrounding Implementation

7. Family Courts Act, 1984: Jurisdiction and Functions

The Family Courts Act, 1984, was enacted to promote conciliation and secure speedy settlement of disputes relating to marriage and family affairs. Key statutory features include:

• Section 3 (Establishment): Mandates State Governments to establish Family Courts in every city or town with a population exceeding one million.
• Section 7 (Jurisdiction): Vests exclusive civil jurisdiction over suits for annulment, divorce, restitution of conjugal rights, matrimonial property division, maintenance, and child custody.
• Section 9 (Duty to Conciliate): Obligates the Family Court to make sincere endeavors to assist and persuade the parties to arrive at a settlement before proceeding with formal trial.
• Section 13 (Representation): Parties are not entitled as of right to be represented by a legal practitioner, though the court may grant permission or appoint an amicus curiae in complex matters.

Core Examination Review Points for Law Students

For university examinations in Family Law II, remember these essential definitions: a codicil amends rather than replaces a previously executed will; a bequest denotes the testamentary disposition of property; and the rule against perpetuity ensures that property cannot be rendered permanently inalienable across successive generations.