For Law Students
Testamentary Succession
Syed Gouseuzzaman Haideri Ali
Testamentary succession means where the propositor explains in details that who will succeed to which property and to what portion of the property after his death. In intestate succession, the propositor does not say anything. He just dies and the property devolves upon his heirs according to the law of intestate succession. In testamentary succession, the property devolves upon the heirs according to the wishes of the propositor.
Testamentary succession in Indian Subcontinent includes:
(I) Testamentary Succession under Islamic Hanafi Law
(II) Testamentary Succession under Islamic Shia Law
(III) Testamentary Succession under Hindu Mitakhshara Law
(IV) Testamentary Succession under Hindu Dayabhaga Law
Testamentary succession under Islamic Hanafi Law includes as discussed below:
Gift During Marz-ul-Maut
Gift during Marz-ul-Maut is one form of testamentary succession. Gift during Marz-ul-Maut means gift on the death bed. When a person is very seriously ill and on the apprehension of death and he makes a gift at that time, then it will be a gift during Marz-ul-Maut. Gift on the death bed is a hybrid of 'hiba' or gift and will. It includes some essential elements of will and some essential elements of gift.
Essential Elements which Resemble gift
-Offer by the Donor
-Acceptance by the Donee
-Immediate Delivery of Possession
Essential Elements which Resemble Will
-No disposal of property more than 1/3
-No Gift in Favour of an Heir
Provided in death bed gift, if the gift is made more than 1/3 or if it is made in favour of an heir then it can be validated only if all other heirs unanimously give consent to it.
Gift in death bed comes into effect only, after the death of the donor. To constitute a gift of Marz-ul-Maut, the donor must be seriously ill. There must be an apprehension of death by the donor due to his serious illness. Donor must die within one year time from his illness.
Will
Will is another form of testamentary succession. Will is a document which declares the intention of the owner of the property as to how his property is to be distributed after his death.
Essential Elements of Will
(1) Will takes effect only after the death of the testator
(2) Only one third of the property can be bequeathed
(3) No bequest in favour of an heir
When any bequest exceeds the limit of one third or any bequest has been made in favour of any heir, then it is essential to take the unanimous consent of other heirs. Consent of the heirs must be taken after the death of the testator.
Formalities
Muslim Law requires no specific formalities for creation of a will. It may be made in writing, orally or even by gesture. It is only necessary that the intention of the testator should be clear.
Revocation of Will
A will or any part of the will may be revoked by the testator at any time before his death.
Registration of Will
According to section 40(1) of Registration Act 1908, a will can be presented for registration by the testator or after his death by the executor. Registration of will is not compulsory.
Deposition and Disposal of Will
Section-42of Registration Act 1908 provides that any testator may deposit with any Registrar his will in a sealed cover super scribed with the name of the testator and with a statement of the nature of the document. The testator shall endorse on the cover name and address of the person to whom the original document shall be delivered after registration thereof and after his death. Section-45 provides that after the death of the testator, who has deposited a sealed cover document of will, if an application is made to the Registrar to open the document, if the Registrar is satisfied that the testator is dead, he shall in applicant's presence, open the cover and then deliver the deposited will to the nominee of the testator.
Testamentary Succession under Shia Law
Testamentary succession under Shia Law is very much similar to Hanafi Law except as follows:
(a)In Shia Law bequest to heir is valid as long as it does not exceed the limit one third of the property and there is no need to take unanimous consent of other heirs. In Hanafi Law bequest to heir is not valid unless there is unanimous consent of other heirs.
(b)In Shia Law when the bequest exceeds one third of the net assets than the unanimous consent of other heirs can be taken at any either before or after the death of the testator. In Hanafi Law the consent of the heirs must be taken after the death of the testator.
The writer is an Advocate, Supreme Court of Bangladesh.
