Mr. Ronak Shah (65), a Hindu, residing in Maharashtra, has decided to pen down his Will. He plans to distribute his assets between his wife, children, and “YouWeCan”—a Cancer charity in India. His children decided to challenge the Will, as they believed it’s illegal for their father to bequeath his assets outside the family.

Mr. Sultan Ahmed (60), a Muslim, residing in Hyderabad, has decided to donate 100% of his estate to “HelpAge India”— a leading non-profit organisation caring for disadvantaged elderly senior citizens. His spouse and children were shocked and they believe he cannot do so!

Mr. Jack D’Souza (75), a Christian, residing in Goa, has decided to break away from family customs and traditions and bestow his estate to his close friend Mr. Jason Pinto.

Take a moment for these snippets. What should Ronak, Sultan, and Jack do? Is it mandatory for them to bequeath their estate to family members? Or can it be given to charity/trust/social-global cause or to anyone else? Does the law allow them to do so?

The Indian Succession system is complex, confusing to the layman, and often, cumbersome. There isn’t a uniform civil code applicable to the whole of India, due to which religion plays an important role in deciding the right of inheritance.

Before we address the dilemmas of the Shah, Ahmed, and D’Souza families, let us first understand the concept of ‘Forced Heirship’.

Forced Heirship is a rule of law wherein an individual is not free to dictate who will inherit the estate on his death. It automatically confers power on certain individuals to bequeath certain portion of the deceased’s estate.

These individuals are known as ‘protected heirs’ and typically include the surviving spouse, children, and/or other relatives of the deceased.

The rationale behind Forced Heirship is family protection. There may be a possibility that the deceased, who was the primary bread-winner, had a few dependants. The Forced Heirship rule does not permit an individual to Will away his estate without providing for his dependants.

On the other hand, these restrictive rules apply irrespective of the terms of the deceased’s Will, and there may be a situation where the stated wishes of the deceased may not be carried out by dissatisfied protected heirs.

However, one should note that, the Forced Heirship provisions typically apply only to a portion of the deceased’s estate and the balance may be distributed at the discretion of the testator.

So, is Forced Heirship applicable in India?

Hindus follow the Hindu Succession Act, 1956. Muslims follow Islamic Law on Succession—Sharia Law. There is a Parsi Law, a Christian Law, and a Special Marriage Act for spouses following different religious faiths, etc. Regardless, all Wills, except Wills written by Muslims are governed under the Indian Succession Act of 1925 for the purpose of execution, probate, etc. of Wills.

The exception to the above rule is the state of Goa, where the Portuguese Uniform Civil Code is applicable, making it mandatory for all religions to follow a common law regarding marriages, divorces, and adoptions.

If you are a Hindu, Parsi, or a Christian, you have the freedom to Will away your estate as per your wish, even against family wishes and social customs and traditions, which means, the rules of Forced Heirship don’t apply to these individuals.

However if you are a Muslim, the Islamic Law on Succession—Sharia Law, permits you to Will away only 1/3rd of your property while 2/3rd is retained by the family, irrespective of a Will to the contrary. This restriction can be waived by all members of the family, in favour of the testator, permitting him to Will away his property as per his desire.

So, coming back to our snippets, the Hindu Succession Act permits Mr. Ronak Shah to Will away his property to anyone or any charity that he pleases. It is the Executors job to obtain the probate to avoid any complications. (A probate is obtained from a court with the necessary jurisdiction proving that it is the last and final Will of the deceased written on a particular date)

On the other hand, Mr. Sultan Ahmed and Mr. Jack D’Souza cannot give away their entire estate to charity or to a friend as the rules of Forced Heirship becomes applicable.

“How do I distribute my assets?” is a question that every head of household has to answer. Succession planning is never easy. And in a country like India, where archaic social customs and traditions are still prevalent, discussing succession planning is still considered taboo.

It is important to understand the laws of the land before you pen down a Will. There are quite a few online Will writing services available. One such service is www.WillEffect.in. It not only helps you to write a Will but also helps in registering and obtaining probate.

Have you penned down a Will yet? Or are you procrastinating? Have you faced any problems in writing down your Will? Do share your thoughts with us. We will try our best to address your queries.
 

Add Comments