What happens to a Will made before marriage when a partner dies?
As a general principle, Wills made by Hindus are not revoked upon the marriage of the person making the Will. However, in an interfaith marriage, there is a provision
My husband recently passed away without leaving a Will. I am a Christian, and he was a Hindu. We have two children and live in Mumbai. My in-laws have discovered a Will made by him before our marriage, which states he has left his property to his parents. Can I challenge this Will made prior to our marriage?
-Name withheld on request
As a general principle, Wills made by Hindus are not revoked upon the marriage of the person making the Will, as the relevant provision under the Indian Succession Act, 1925, does not apply to Hindus.
A Hindu person’s Will is only revoked by (i) making another Will or codicil, or (ii) making a written instrument revoking the Will (which is executed in the same manner as a Will is legally required to be executed), or (iii) burning, tearing, or otherwise destroying the Will with the intention of revoking it.
However, the Bombay High Court (which has jurisdiction in Mumbai) has opined that if a Hindu enters into an inter-faith marriage to a person who is not Hindu, Buddhist, Sikh, or Jain under the Special Marriage Act, 1954, then the provision under the Indian Succession Act, 1925 relating to revocation of a Will upon marriage becomes applicable to a Hindu.
We assume that since yours is an interfaith marriage, it would have been solemnised under the Special Marriage Act (before the Marriage Registrar/Officer). Therefore, the marriage could have the effect of revoking any Will made by your husband prior to the marriage.
Since your husband passed away without making a Will after the marriage, his estate should be governed by the rules of intestate succession (succession without a Will) as provided in the Indian Succession Act. By these rules, one-third of the estate of your husband should devolve upon you and the balance two-third of his estate should belong to your children, equally.
The above is based on a general interpretation of the various legal provisions, so do consult a lawyer to understand the application of the position to the facts and circumstances of your case. Do note that certain states, such as Uttarakhand and Goa, have state-specific succession laws, and it is advisable that you seek relevant advice should you be resident or domiciled in such states.
Shaishavi Kadakia is a partner and Saloni Shah is an associate at Cyril Amarchand Mangaldas, Mumbai.