SUCCESION: Under Private International Law

INTRODUCTION

In the countries of continental Europe and other civil law countries all matters relating to
succession are governed by one single system of law, viz., and the law of the nationality of the
deceased. This is because these countries follow the principle of unity of succession (France
and Belgium are two exceptions) under which succession, testamentary as well as intestate,
and all matters relating to succession are regulated by one single system of law viz., the
personal law of the deceased which most countries take to be the law of the nationality of the
deceased at the time of his death. In the civic law countries, as well as under the personal law
of Hindus and Muslims in India, the property vests in the heirs immediately on the death of the
deceased.

India, England and other countries which follow the common law traditions adopt the
principle of succession under which movables and immovable do not devolve under one single
system of law. In English law this distinction seems to be on account of historical reasons. In
England, freehold land could not be devised by will until 1540, while movables could be
bequeathed and were governed by the principle of mobilia sequuntur personam. Although the
historical reasons have disappeared, the distinction still exist in English Private International
Law under which succession to immovable is regulated by the lex situs and not by the personal
law of the deceased, while succession to movables is regulated by the lex domicile of the
deceased. Thus, if a person dies intestate leaving behind immovables in England, then
devolution to his property would be in accordance to English internal law, whatever might have
been his nationality or domicile. On the other hand, a British national or a person domiciled in
England dies leaving behind immovable properties in India, then devolution to his property
would be governed by the Indian law, i.e. the way an Indian court would be governed by the
Indian law, i.e. the way an Indian court would determine the question. Section 5, Indian
Succession Act, 1925 statutorily recognizes this principle.

The section runs as under:

“(1) Succession to the immovable property in India of a person deceased shall be

regulated by the law of India, wherever such person may had his domicile at the time of his
death.

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 (2) Succession to the movable property of a person deceased shall be regulated by the
law of the country in which such person had his domicile at the time of his death.”

The rules of English and Indian Private International Law could hardly be considered as
satisfactory. The will Act, 1963 has tried to solve of the difficulties. The will act.1963 has tried
to solve of the difficulties. The Act apples to form and construction, but as Graveson suggests,
it is submitted rightly, by analogy it can be applied to other branches of testamentary
succession.

Thus the subject can be discussed much elaborately under the following heads:

a) Administration of Estates, b) Succession to immovables, and c) Succession to

movables.

ADMINISTRATION OF ESTATES

In English law administration and succession are two different concepts. In English law no one
is entitled to deal with or distribute the property of a deceased person unless he has obtained
authorisation from the court. If a person dies intestate, or where a will has been made, but the
appointment of executor has failed for any reason, then the next-of-kin (husband, wife or child
of the deceased) can acquire the necessary authority for dealing with property by obtaining
letters of administration. In case a person has appointed an executor under the will who
consents to act, then the executor may obtain necessary authority by obtaining probate of the
will. In such administrator or executor the property vests immediately on the death of the
deceased. Executors and administrators are together referred to as personal representatives. In
the countries of continental Europe such persons are known as heirs use the term
administrators’. The administrators under English law have three main functions: (a) collection
of assets of the deceased, (b) payment of debts, and (c) distribution of residue among the heirs.

Jurisdiction of the Court

In the following three situations the question of administration of estate of the deceased may
arise before the English court:

(a) When the deceased has made a will and had also appointed an executor who consents,
then the executor may obtain probate of the will,

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 (b) When the deceased has made a will, but has either not appointed an executor or the
appointment of executor has failed, then the ort may appoint an administrator, and
(c) When the deceased had died intestate, then the court may grant letters of administration.

Indian Law

Indian law closely follows English law. The provision relating to grant of probate and letters
of administration are contained in the Succession Act, 1925. In the matter of grant of letters of
administration or probate, the jurisdiction is conferred on the District Judge. The High Courts
have concurrent jurisdiction with the District Judge.

Jurisdiction

Under s. 270 of the Succession Act,1925 the basis of jurisdiction are two : (a) if at the time of
his death the deceased had a fixed place of abode within the jurisdiction, or (b) if movable or
immovable property of the deceased is situated within the jurisdiction of the District Judge. In
a purely domestic case, any of these two alternatives bases of jurisdiction, but it seems that in
a conflict of laws case Indian court may decline to grant a probate or letters of administration
merely on the basis that the deceased had ‘a fixed place of abode’ in India. The grant will be
made only if the deceased had left some movable or immovable property within the
jurisdiction. From an early date Indian courts have taken the view that a grant of probate can
be made of a will executed abroad by a person who is neither domiciled here nor a national of
India, if the testator had left some immovable or movable property in India.

Choice of Law

In the matter of grant of letters of administrations Indian law makes a distinction

between Hindus, Muslims, Buddhists, Sikhs and Jains on the one side and other persons of the
other. In the former case, letters of administrations are not required and therefore, it is optional
for them to obtain letters of administration. In case someone desires to obtain letters of
administration, then s.218, succession Act lays down that grant may be made ‘to any person,
who accordingly to the rules for distribution of the estate applicable in the case of such
deceased, would be entitled to the whole or any part of such deceased’s estate.’ The heir of the
deceased would be determined on the basis whether he died as Hindu or as a Muslim. In case
the deceased was not a Hindu or Muslim, then those who are connected with him by marriage
or by consanguinity are entitled to obtain letters of administration. The order in which they
may apply is laid down in s. 219 of the Succession Act, 1925 which is as under:

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 (a) If the deceased has left a widow, administration shall be granted to the widow, unless
the court sees cause to exclude her wither on the ground of some personal
disqualification, or because she has no interest in the estate of the deceased.
(b) If the judge thinks proper, he may associate any person or persons with the widow in
the administration who would be entitled solely to the administration if there were no
widow.
(c) If there is no widow, or if the court sees cause to exclude the widow, it shall commit
the administration to the person or persons who would be beneficially entitled to the
estate according to the rules for the distribution of an intestate’s estate:
Provided that when the mother of the deceased is one of the class of persons so
entitled, she shall be solely entitled to administration.
(d) Those who stand in equal degree of kindred to the deceased are equally entitled to
administration,
(e) The husband surviving his wife has the same right administration of her estate as the
widow has in respect of the estate of her husband.

SUCCESSION TO IMMOVBABLE POPERTY

As has been seen earlier in this Chapter, the English and Indian Private International laws
follows the principle that succession to immoveables is governed by the lex situs.

English Law

Under English law the general rule is that all aspects of succession, intestate or
testamentary, are regulated by the lex situs.

When a person dies leaving immovable properties, then it is the lex situs and the lex
situs alone which decides matters relating to capacity to make will, revocation of will, power
of disposition, the validity of disposition and like matters. The law of domicile or nationality
of the testator has absolutely nothing to do with any of these matters. The Wills Act, 1963
giving effect to the Fourth Report of the Private International Law committee and to the Draft
Convention on the Formal Validity of wills made at the Hague in 1961, lays down that will be

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formally valid if it conforms to the internal law in force in the country where, at the time of its
execution or of the testator’s death, he was domiciled or had his b=habitual residence, or in a
state of which, at either of those times, he was a national.

Indian Law

The Indian private international law is substantially the same, Section 5(1), Indian Succession
Act, 1925 runs as under:

“Succession to the immovable property in India of a person deceased shall be regulated

by the law of India, wherever such person may have had his domicile at the time of his death.”

Under the Indian Private international law also, it seems to matters relating to capacity to make
will, revocation of will, power of deposition and the validity of disposition and like are
governed by the lex situs.

Provisions relating to construction of wills are laid down in ss. 74 to 111, succession Act, 1925
and relating to election ss. 180-190, succession Act, 1925. It appears that whenever a will of
deceased person in respect of immovables situated in India comes for construction before an
Indian court, the Indian court a bound to apply the lex fori,. i.e. rules of construction as laid
down in ss.74 to 111 of the Succession act, 1925. The Indian courts have all along taken the
view that intention of the testator is to be carried out. But clear and unambiguous dispositive
words are to be given effect to, and not to be controlled by the so-called intention of the testator.

SUCCESSION TO MOVABLE PROPERTY

English Law

Jurisdiction of the English Court: In English Law succession is usually termed as beneficial
distribution of property. Theoretically, if the English court has jurisdiction to grant
administration, it has also jurisdiction to determine beneficial distribution of property. But as
has been earlier, in the absence of the local assets the English court exercises jurisdiction only
when the foreign country where assets are situated requires a grant of administration from the
court of the country of the domicile of the deceased. But if he died leaving behind property in
England, the English court has jurisdiction to determine the validity of his will, the construction
and effect of the will, persons entitled to succeed to property and all matters connected with
succession, even though the deceased died domiciled abroad.

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Jurisdiction of Foreign Courts: The court of the country where the deceased died domiciled
have jurisdiction to determine succession to all movables whether situated, though courts do
not recognize that the courts of domicile have exclusive jurisdiction. However, “while title has
been adjudicated upon by the courts of the domicile, such adjudication is binding upon, and
must be followed by, the courts of this country.” It may be conjected that the English law would
concede jurisdiction to courts of the country where movables are situated even if the deceased
is not domiciled there, as English court also exercise Jurisdiction on this basis.

Choice of Law

Intestate Succession

Intestate succession to movable is governed by the law of the domicile of the deceased person
at the time of his death, irrespective of the fact as to the place where he was born, or died, or
of the situation of movables at the time of his death. It is the Lex domicilii which determines
the heirs who are entitled to take the relative proportion to which they are entitled to, the right
of representation, the rights of a surviving spouse, the liability of the distributes for unpaid
debts, the relationship of the claimant with the deceased, and like matters.

Testamentary Succession

Testamentary succession to movables is also governed by the law of the country where the
deceased was domiciled at the time of his death. If a deceased person domiciled elsewhere dies
leaving behind his assets in England, then a grant of probate in England is essential and so far
as the admisntration is concerned it is governed by the lex fori, but then all questions relating
to beneficial succession must be decided in accordance with the law of the domicile of the
deceased. In other words, the executor must ascertain as to who are the persons entitled to
succeed and in what proportion they would take the property under the law of the domicile.

Capacity to make will: The testamentary capacity, i.e. personal capacity to make will, is
determined by the lex domicile of the testator. If the testators domicile is the same at the time
of making of the will as well as at the time of the death, there is no difficulty.

Formal Validity: Under the English common law the rule has been that the will of movables
to be formally valid must comply with the law of the domicile of the testator at the time of his
death. This rule led to much inconvenience and hardship and led to the passing of the will Act,

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1861which was not only unsatisfactory but discriminatory between the British subject and
foreigners.

Material Validity: The English Private International Law laid down that the material validity
of a will is governed by the Lex Domicilii of the testator at the time of his death.

Construction of Wills: The writers of English law and some English decisions take the view
that construction of will should be made under the law of the domicile of the testator at the
time when the will is made.

Revocation of Wills : The rules relating to revocation of will differ from country. Ordinarily,
a person who has capacity to make will, will also have the capacity to revoke it. A will may
stand revoked by the act of the testator, or by the operation of law.

Power of Appointment

English law empowers a person to give, by an instrument, such as will, to some other person
or to himself a power to appoint by will the person or persons who would succeed to the
property on the death of the person to whom the power is given. The person who thus gives the
power is known as the “Donor of the Power” of “the appointor” and the person to whom the
power is given is known as “the donor of the power” or the appointee”. The power of the
appointment may be either general or special.

Indian Law

So far as the testamentary succession is concerned, in India, members of all communities

are governed wholly or partly by one law, viz’. the Succession Acr, 1925, though different
rules of succession apply to members of each community in the case of intestate succession.
Law of testamentary succession in India is contained in Part VI of the succession Act, 1925,
and constitutes the law of testamentary succession in India, and applies to all communities,
except the Muslims. To the Hindus it applies with some modifications. As to the other
communities, such as Christians and Parsis, it applies fully.

Section 5(2) of the Succession Act, 1925, as has already been noted, contains a rule of
conflict of laws. It lays down that succession to the movables of a deceased person is to be
regulated by the law of the country in which such person had his domicile at the time of his

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death. But the application of this provision has been excluded in case the deceased is a Hindu,
Mohammedan, Buddhist, Sikh or Jain.

Jurisdiction of the Court

Jurisdiction of the Indian Court: It has been seen in Part I of this chapter that under the
Succession Act, 1925 letters of administration or probate can be obtained in respect of the
letters of administration or probate can be obtained in respect of the estate or will of any person,
including a Hindu and a Muslim. The Indian courts exercise jurisdiction either on the basis of
presence of assets within the jurisdiction, or that the deceased had a fixed place of a abode at
the time of his death within the jurisdiction. The Indian court does not have as wide a
jurisdiction as the English court has under the Act of 1932 to grant administration in respect of
“any deceased person”. But it seems, in view of the generality of the provision of s. 5(2), in
respect of movables, the court may exercise jurisdiction on the basis that the deceased died
domiciled in India whenever it is called upon to exercise jurisdiction in the interest of justice.

Jurisdiction of Foreign Court: There is no reported decision of Indian court as to on

what basis the Indian Courts would recognise the jurisdiction of the foreign courts to determine
succession to movables. In this connection the main question is : suppose, an Indian Hindu dies
domiciled in England leaving behind assets in India, will the Indian Courts accept the
determination of Succession in accordance with the lex domicilii of the deceased? The question
becomes complicated as for Hindus and Muslims, strictly speaking there is nothing like lex
domicilii, they are governed by their personal law, which is the law of their community. When
the English court determines succession on the basis of the lex domicilii of the deceased, then
it should apply the personal law of the deceased Hindu, as in his case, broadly construed, that
will be the law of his domicile. If the English court applies any other law, then the Indian courts
will not accord recognition to such assumption of jurisdiction.

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Choice of Law

Interstate succession

It seems to be clear that intestate succession to movables is governed by the lex domicilii of
the of the deceased at the time of the death. But will it equally apply to Hindus and Muslims?
Under the influence of English private international law it is often forgotten that nationality is
an important connecting link in personal matters in India. Suppose, a Burmese Buddhist dies
in Burma leaving behind movable in India. The Buddhist are included in the definition in the
term ‘Hindu’. Will succession to his property be regulated under Hindu law? The answer will
be affirmative, if we ignore his nationality.

It should be ignored that in India intestate succession differs from community. Hindus
are governed by their own law of succession, Muslims by Muslim law of succession, Parsis are
governed by the Parsi law of succession, and Christian and others by their own laws of
interstate succession.

Testamentary Succession

As has been seen earlier, with minor exceptions, there is one law of testamentary succession
in India. Muslims are governed by their own law of testamentary succession and provisions
relating to testamentary succession in the Succession Act, 1925 do not apply to them. However,
provisions relating to them.

Capacity: The Indian law lays down the broad rule that succession to movables is governed
by the law of the domicile of the deceased at the time of his death. The question is: does the
general principle apply to capacity to make will? It is submitted as far it concerns the personal
capacity, it should be governed by the law of the domicile of the deceased at the time of making
of the will, as the same arguments apply here as they apply under English Private International
Law.

Formal Validity: India has not enacted anything like the English statutes of 1861and 1963.
Therefore, it seems that the general rule enacted in s. 5(2), Succession Act would apply to
formal validity of wills. But in respect of a will of foreign domiciled abroad, the formal validity
would be determined by the domiciled abroad, the formal validity would be determined by the
lex domicilii of the testator at the time of his death-this is because of the provision I s. 5(2),
Succession Act, 1925.

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 Material or Essential Validity: It seems that under India private international law the same
rules apply to material validity as they apply to formal validity. The material validity of the
will of a foreigner will be governed by the law of his domicile at the time of his death. Under
Muslim law, a Muslim cannot bequeath more than one-third of his property; if an Indian
Muslim bequeaths one-half of movables situated in India and if the validity of his will comes
into question before an Indian court, then such a bequeath will not be valid even if the Muslim
died domicile in England.

Construction of the Will: It seems that the same consideration apply to the interpretation or
construction of will of movables under the Indian law as they apply under English law. The
Succession Act, 1925, Chapter six contains provisions relating to construction of Wills.

Revocation of Will: under the law a will may be revoked: (a) by another will or codicil of
the deceased or by some writing declaring an intention to revoke the same and executed in the
manner a will is executed (b) by destroying the will, (c) by marriage of the testator, but this
doesn’t apply to the wills of Hindus and Muslims.

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CONCLUSION

Most foreign Countries have adopted the principle of unity of succession by which questions
relating to intestacy or to wills are governed by one ingle law, the personal law of the deceased,
irrespective of the nature of the subject-matter. The common law of England, however, has
consistently adhered to what is called the principle of succession under the destination of
immovables on the death of the owner is governed by the lex situs, not by the law of is domicile
as is in the case of movables. India, England and other countries which follow the common law
traditions adopt the principle of succession under which movables and immovable do not
devolve under one single system of law. In English law this distinction seems to be on account
of historical reasons. In England, freehold land could not be devised by will until 1540, while
movables could be bequeathed and were governed by the principle of mobilia sequuntur
personam. Although the historical reasons have disappeared, the distinction still exist in
English Private International Law under which succession to immovable is regulated by the
lex situs and not by the personal law of the deceased, while succession to movables is regulated
by the lex domicile of the deceased. Thus, if a person dies intestate leaving behind immovables
in England, then devolution to his property would be in accordance to English internal law,
whatever might have been his nationality or domicile.

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