Q&A: Intestacy can be either total or partial
2 min read 16 May 2018, 10:31 AM ISTA person is considered to have passed away intestate in respect of property (a) which he has not disposed under a Will, or (b) the disposition under the Will can't take effect (i.e., invalid bequest, illegal bequest)
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My grandfather had three sons and three daughters. His property was transferred to his first son (my uncle) via a Will. After my uncle’s death, it was transferred to my aunt’s name. Can my other aunts and uncles claim any share?
—Divya Shetty
Succession on the death of a person may follow either: (a) testamentary succession (with a Will), or (b) intestate succession (without a Will). Once the Will is made, it can only be revoked during his lifetime.
A person is considered to have passed away intestate in respect of property (a) which he has not disposed under a Will, or (b) the disposition under the Will can’t take effect (i.e., invalid bequest, illegal bequest). Intestacy may either be total or partial.
As per the Indian Succession Act, 1925, the provisions of testamentary succession are applicable to the Will if (i) made by Hindu, Buddhist, Sikh or Jain on or after the first day of September 1870, within the territories which at the date were subject to Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; or (ii) made the Will outside those territories and limits, so far as it relates to immovable property within those territories or limits.
Further, no right as an executor or legatee can be established in any Court of Justice, unless a court of competent jurisdiction in India has granted probate of the Will under which the right is claimed. But this provision applies only to the two cases referred above. In your case: Your grandfather bequeathed all his property (presuming it was self-acquired) under his last Will in favour of your eldest uncle;
Upon demise of your grandfather, your eldest uncle became the owner of the property by virtue of the Will (we presume that the Will’s executor has received a probate from a court having competent jurisdiction, if it falls within either of the aforesaid two categories, and that other uncles and aunts gave their consent for grant of probate).
After your eldest uncle’s demise, the property has passed on to your aunt (either your eldest uncle bequeathed that property to his wife, or he died intestate and is survived by your aunt as his only legal heir). Presuming that your uncles and aunts gave their consent at the time of probate, they would have relinquished their rights and claims in the property.
Amit Kolekar is associate partner, Rajani Associates.
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