Unit IV of Family Law II, examined in the second semester of the three-year LLB programme under KSLU, covers the law of wills under Mohammedan law, distribution of property under the Indian Succession Act, 1925, the rules of domicile, Parsi intestate succession, intestate succession certificates, and probate and letters of administration. These are the topics tested in the second-semester examinations, and this note follows the syllabus pattern.
Will and Inheritance: Meaning, Difference between Will and Gift
Wills under Mohammedan Law
A will (wasiyat) is a declaration by the owner of property stating how that property is to be distributed after his death. It takes effect only upon the testator's death and may be revoked at any time before death. Revocation need not be express: a subsequent will impliedly revokes the previous one.
Any Mohammedan -- male or female -- who has attained 18 years of age and is of sound mind may execute a will. The following foundational rules govern Mohammedan wills:
- A Muslim may not, by will, dispose of more than one-third of his net estate (after payment of funeral expenses and debts) without the consent of his heirs. A bequest exceeding one-third takes effect only to the extent consented to by the heirs after the testator's death.
- A bequest in favour of an heir of the testator is not valid without the consent of the other heirs, given after the testator's death. This rule prevents the testator from favouring one heir over others by way of a will.
- A bequest to a child in the womb is valid if the child is born alive within six months of the date of the will.
- Under Sunni (Hanafi) law, a bequest to a non-Muslim is generally valid. Under Shia law, a bequest to a non-Muslim who is not a Dhimmi may be restricted in certain schools.
- A will may be subject to conditions, but an unlawful condition attached to a bequest does not invalidate the bequest itself; the unlawful condition is simply disregarded.
The key distinction between a will (wasiyat) and a gift (hiba) is that a gift transfers ownership immediately during the donor's lifetime and requires delivery of possession (qabza) to be complete and valid. A will transfers ownership only upon the testator's death, does not require delivery during the testator's lifetime, and can be revoked at any time before death. A gift, once completed with delivery, is irrevocable except in limited circumstances (such as a gift by a father to a child).
Shia Law of Wills
Shia law applies the same one-third restriction. However, under some Shia schools, a bequest in favour of an heir is not absolutely void without co-heirs' consent; the rules on priority of bequests and the manner of distributing shortfalls when bequests exceed one-third differ from Sunni law in certain respects. Students should note the distinction when answering examination questions that specify the school.
Hanafi (Sunni) Law of Inheritance
Under Hanafi law, heirs are classified into three categories for intestate succession:
- Sharers (Zawul Furud / Quranic heirs): These are heirs who receive fixed fractional shares as prescribed by the Quran -- husband, wife, daughter, son's daughter, father, grandfather, mother, grandmother, uterine siblings, and full or consanguine sisters. Their shares are specified and do not fluctuate according to the number of other heirs from the same category.
- Residuaries (Asabat): After the Quranic heirs have taken their prescribed shares, the remainder (residue) passes to the residuaries. The nearest agnatic male relative typically takes as a residuary. A daughter, for example, becomes a residuary with the son and takes half of what the son takes.
- Distant Kindred (Zawul Arham): If neither Sharers nor Residuaries exist, the estate passes to distant kindred -- relatives connected to the deceased through a female link.
Hiba (Mohammedan Law of Gift)
A hiba is a gift: a transfer of property made immediately and without consideration. Three elements are essential:
- Ijab (declaration): The donor declares his intention to make the gift.
- Qabul (acceptance): The donee accepts the gift, either orally or through conduct.
- Qabza (delivery): The donor delivers possession of the subject matter to the donee. Without delivery, the gift is incomplete and does not transfer ownership.
A hiba may not be made of an undivided share in property that is not capable of division (mushaa), except where the property itself is not divisible (such as a bath-house or a boat). A gift once completed is irrevocable save in exceptional circumstances: a father may revoke a gift to his child; a husband may revoke a gift to his wife (under Hanafi law) unless consideration has been given. Revocation after the donee has altered or transferred the property is not available.
Distribution of Property under the Indian Succession Act, 1925
The Indian Succession Act, 1925 consolidated earlier succession statutes -- the Indian Succession Act 1865, the Hindu Wills Act 1870, and the Probate and Administration Act 1881 -- into one statute. Section 4 of the Act specifies that it does not apply to Hindus, Muhammadans, Buddhists, Sikhs, or Jainas. It therefore applies primarily to Christians, Jews, and Parsis (with certain modifications for Parsis under the intestate succession provisions).
Domicile under the Indian Succession Act, 1925 (Sections 4 to 22)
Meaning and Importance of Domicile
Domicile is the legal relationship between a person and a state, used to determine personal status and the applicable law in matters of succession, marriage, divorce, and attainment of majority. Under the Indian Succession Act, the domicile of the deceased at the time of death determines which country's law governs the succession to movable property. The location of the property governs succession to immovable property regardless of domicile.
Section 5 -- Law regulating succession:
(1) Succession to the immoveable property in India of a person deceased shall be regulated by the law of India, wherever such person may have had his domicile at the time of his death.
(2) Succession to the moveable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death.
Illustrations under Section 5
- A, having his domicile in India, dies in France leaving moveable property in France, England, and India. Succession to all moveable property is governed by the law of India.
- A, an Englishman domiciled in France, dies in India leaving both moveable and immoveable property in India. Succession to the moveable property is governed by the French rules applicable to an Englishman domiciled in France; succession to the immoveable property is governed by the law of India.
Foundational Rules of Domicile
- A person can have only one domicile at any point in time.
- No person can be without a domicile.
- Domicile requires two factors: factum of residence (physical habitation for an indefinite period) and animus manendi (the present intention to reside indefinitely).
Types of Domicile
1. Domicile of Origin
Section 7: The domicile of origin of every person of legitimate birth is in the country in which at the time of his birth his father was domiciled; or, if he is a posthumous child, in the country in which his father was domiciled at the time of the father's death.
Illustration: A's father is domiciled in England at the time of A's birth. A's domicile of origin is England, regardless of the country in which A was born.
The domicile of origin revives automatically if a person abandons his domicile of choice without immediately acquiring a new domicile of choice. A person cannot be without a domicile, so the domicile of origin fills the gap.
2. Domicile of Choice
Section 10: A man acquires a new domicile by taking up his fixed habitation in a country which is not that of his domicile of origin.
Explanation: A man is not to be deemed to have taken up his fixed habitation in India merely by reason of his residing there in the civil, military, naval or air force service of Government, or in the exercise of any profession or calling.
Both factum (physical presence in the new country) and animus (genuine intention to remain permanently) are required. Appointment as an Ambassador or Consul in a foreign country does not, by itself, create a domicile of choice in that country.
Rules of Domicile for Particular Categories of Persons
Minor
Section 14: The domicile of a minor follows the domicile of the parent from whom he derived his domicile of origin.
Section 17: Save as otherwise provided in this Part, a person cannot, during minority, acquire a new domicile.
A legitimate minor's domicile follows the domicile of his father. An illegitimate minor's domicile follows the domicile of the mother. If the mother's domicile changes, the domicile of the illegitimate minor changes automatically. A minor cannot independently acquire a domicile of choice.
Married Woman
Section 15: By marriage a woman acquires the domicile of her husband, if she had not the same domicile before.
Section 16: A wife's domicile during marriage follows the domicile of her husband.
A minor female has the domicile of her parents. Upon marriage, her domicile becomes that of her husband. An unmarried woman who has attained majority may choose her domicile independently. A divorced woman's domicile does not follow the domicile of her former husband after divorce.
Illegitimate Child
Section 8: The domicile of origin of an illegitimate child is in the country in which, at the time of his birth, his mother was domiciled.
An illegitimate child's domicile of origin follows the mother. On attaining majority, the illegitimate child may change his domicile at will. If an illegitimate daughter marries, her domicile becomes that of her husband.
Lunatic (Person of Unsound Mind)
Section 18: An insane person cannot acquire a new domicile in any other way than by his domicile following the domicile of another person.
A person of unsound mind cannot form the animus required for a domicile of choice. His domicile can be changed only through the operation of law -- through the domicile of a guardian, parent, or, for a married woman of unsound mind, the domicile of her husband.
Procedure for Acquiring Domicile in India
Section II of the Indian Succession Act prescribes how a foreign national may acquire Indian domicile:
- Declaration: The person must declare in writing the intention to acquire domicile in India.
- Deposit: The written declaration must be deposited with the Registrar of Domiciles, appointed by the Government of India for this purpose.
- Residence: The person must have resided in India for at least one year before presenting the declaration to the Registrar.
Parsi Intestate Succession and Non-Parsi Intestate Succession
The Indian Succession Act provides separate intestate succession rules for Parsis (Part V) and for persons governed by the general provisions (Part IV). Under Parsi intestate succession, where the deceased leaves a widow, widower, children, or other relatives, shares are distributed in fixed proportions prescribed by Sections 50 to 56 of the Act. The general provisions (Sections 33 to 49) cover the intestate distribution for Christians and others to whom the Act applies, based on whether the deceased left a spouse, lineal descendants, parents, or other relatives.
Succession Certificate
A succession certificate is granted by a civil court under Part X of the Indian Succession Act (Sections 370 to 390) to a person entitled to administer the movable estate of a deceased, where the deceased has not left a will or where a grant of probate or letters of administration is not required. It authorizes the certificate holder to receive debts and securities owed to the deceased, and indemnifies persons paying in reliance on the certificate from any subsequent claims by other claimants to the estate. Succession certificates are commonly required for releasing bank fixed deposits, shares, provident fund balances, and insurance proceeds.
Probate and Letters of Administration: Powers and Duties of Executor
Probate is the official recognition of a will granted by a court with testamentary jurisdiction. It is conclusive proof of the will's due execution and the testator's testamentary capacity. Probate is mandatory in some cases, particularly for wills of immovable property in the presidency towns (Calcutta, Bombay, and Madras). An executor named in a will derives authority from the testator but must obtain probate before exercising that authority in a manner that binds third parties.
Letters of administration are granted by a court where the deceased died intestate or where no executor is named or the named executor is unable or unwilling to act. The administrator takes out letters of administration to administer the estate under court supervision.
Powers and duties of an executor or administrator include: taking possession of all assets of the deceased; paying funeral expenses; paying all debts and liabilities of the estate in the prescribed order of priority; paying legacies as directed by the will; and distributing the residue among the persons entitled. An executor or administrator is a trustee of the estate for the persons beneficially entitled and is accountable for any breach of that duty.
For further reading on wills and succession disputes handled through the courts, see the Family and Divorce Law practice area page on this site, and for related LLB class notes on administrative law and constitutional law see Administrative Law Unit IV class notes.