Forced Heirship

FORCED HEIRSHIP & SUCCESSION RULES
What exactly is 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.
Succession Laws applicable in India - Laws of Intestate succession are different for Hindu,
Muslims and Christians.
For Hindus- Hindu Succession Act
The Hindu Succession Act, 1956 is an Act relating to the succession and inheritance of
property. This Act lays down a comprehensive and uniform system which incorporates both
succession and inheritance. This Act also deals with intestate or unwilled (testamentary)
succession. Therefore, this Act combines all the aspects of Hindu succession and brings them
into its ambit. This article shall further explore the applicability, and the basic terms and
definitions and the rules for succession in the case of males and females.
For Christians - The Indian Succession Act, 1925 provides for the inheritance laws for all
other religions, including Christians.
Christians have varied laws on succession and familial relations. The rules for succession
among the Christians has been codified under the Indian Succession Act, 1925, while on the
other hand customary practices also have an influence on the principles of inheritance. The
British Indian Government enacted the Indian Succession Act, 1865 which was to apply in
the case of Christians. This Act was later replaced by the Indian Succession Act, 1925, which
currently governs the inheritance in case of Christians. Certain customary practices also
influence the principles of inheritance in case of Christians and have also been considered by
the courts in India.
For Muslims- The Muslim law of succession constitutes four sources of Islamic law-
 The Holy Quran;

 The Sunnah- the practice of Prophet;
 The Ijma – consensus of the learned men of the community on what should be a decision
on a particular point;
 The Qiya – deduction of what is right and just concerning the good principles laid down
by God.
The Indian Succession Act, 1925 defines a succession certificate as a certificate issued by a
court to the legal heirs of a deceased to establish the authenticity of the heirs and give them
the authority to inherit debts, securities and other assets of the deceased. The purpose of a
succession certificate is limited in respect of debts and securities such as provident fund,
insurance, deposits in banks, shares, or any other security of the central government or the
state government to which the deceased was entitled. Its main objective is to facilitate
collection of debts on succession and afford protection to the parties paying debts to the
representatives of the deceased person. A succession certificate may be used in situations
where banks, financial and private institutions release funds to the nominee (where such
nominee is not the legal beneficiary of the asset) and the nominee refuses to cooperate in
distribution of the asset to the legal beneficiary. Similarly, a succession certificate may be
useful to prove genuineness of the claimant where the inheritance amount is substantial.
Additionally, in certain states, a probate (meaning a copy of the will, if it exists, authenticated
by the Court) and a succession certificate are compulsory to transfer the title of an immovable
property. Procuring a Succession Certificate.
Is intestate succession mandatory? When is it applicable?
In a dynamic and diverse country like India, succession is a very tactful issue. It may either
be
 Testamentary succession – one with a will; or

 Intestate succession – one without a will.
A will is basically a declaration expressing the desires of a person with regard to his estate
and provides for its transfer upon his death. A person is said to have died intestate with
respect to an asset that he has not disposed under a will, or the disposition under the will is
not capable of taking effect either on account of invalid bequest or illegal bequest. Intestacy
may either be total or partial.
In the event a person dies intestate, his/her assets are distributed as per the mandate of the
Indian Succession Act. The vesting of the assets takes place under the relevant personal laws.
However intense complexities arise when there is more than one heir, given the fact that
some assets are more lucrative than their counterparts.
Conclusion: 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.

Forced Heirship

Uploaded by

Copyright:

Available Formats

Forced Heirship

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Forced Heirship

Uploaded by

Copyright:

Available Formats

FORCED HEIRSHIP & SUCCESSION RULES

What exactly is forced heirship?

 The Holy Quran;

 Testamentary succession – one with a will; or

Conclusion: Is forced heirship applicable in India?

You might also like