INTESTATE AND TESTEMENTARY SUCCESSION

There are two types of succession we generally recognize, namely –

Intestate Succession ; and
Testamentary Succession.
Intestate Succession
Suppose a person dies, leaving behind some property without making any Will or any testament capable of taking effect in law. In that scenario, the property he left behind will be distributed among his legal heirs as per the laws of inheritance or of Intestate Succession, as generally called. The person who died leaving behind no bill, is known as “intestate”. The ones who are capable of having a share in the property of the intestate, are known to be his “heirs”.

Thus, the whole process of distribution of property among the legal heirs of an intestate is termed as “Intestate Succession”. All the family laws which deals with the succession, for that matter Hindu Succession Act,1956 as an example, lay down a scheme of inheritance that is applicable in case a person dies leaving behind property but does not mentions or give instructions with respect to the distribution of the property, thus left behind after the death of the intestate. In this case the property of the deceased devolves as per the provisions mentioned in the chapter II of the Hindu Succession Act,1956.

Testamentary Succession
Unlike Intestate Succession, the testamentary succession is governed by a Will or a testament. A person making the will is known as “testator” or “testatrix”. The one in whose name or favor the will is made is known as “legatee”. As per the Hindu law, a male or a female Hindu are capable of making a will of their property, including of a share in the undivided Mitakshara coparcenary, that too in favour of anyone. In these cases, the property of such Hindu male or female devolves on their death, in accordance with the principles or guidelines mentioned in the will to give effect to the distribution process.

The property in this case does not devolve in accordance with the laws of inheritance. To give effect this type of succession, the will made by the testator must be valid and capable of taking effect in law. In case the will is not valid or incapable of taking effect legally, the property will devolve as per the laws of inheritance. The whole process of making a will and making it effective after the death of the testator is termed as “Testamentary succession”. Chapter III of the Hindu Succession Act,1956 deals with the testamentary disposition of the property of the deceased.

There are certain requirements to make a valid will, they are as follows :

The testator before his death must told the notary and two other witnesses that the particular document must be treated as his/her testament or will.
The testator must give his assent to the testament.
There must be a declaration by the notary and the witnesses.

Relevant Case Laws:

Krishnamma v. P Subramanyam Reddy AIR 2008
In this case, a Hindu wife had deserted the husband to live and give birth to her paramour’s children. After the death of her husband, she reappeared and instituted the suit for a claim to his property. The court held that the widow having abandoned all her rights; having left the family once and for all; having been under the roof of another man and having begotten her children cannot claim her husband’s property both in law and also in equity. It was the judgement based on the principles of equity, justice and good conscience delivered by the Andhra Pradesh High court.

Man Singh v. Ram Kala AIR 2011
The apex court held that a daughter is a class-I heir and in a suit for partition of the separate property left by the father at the instance of a son, the daughters have to be included and a decision of distribution of the property only as between the mother and the son, without involving the daughters would be improper

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