Dr.

Ram Manohar Lohiya National Law University

Lucknow

Subject: - Project of Conflict of Laws

Topic: - Beneficial Distribution under Succession

Submitted to: - Submitted by:-

Mr. Prem Kumar Gautam Shalini Dwivedi
(Assistant Officer) Semester VIII
B.A., LL.B. (Hons.)

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TABLE OF CONTENTS

1. INTRODUCTION
2. CHOICE OF LAW
3. DISTRIBUTION OF PROPERTY OF HINDU PERSON AS PER
SUCCESSION LAWS – IF NO WILL
4. JURISDICTION
5. LEGAL EFFECTS OF GRANT OF REPRESENTATION
6. INTESTATE SUCCESSION
7. TESTATE SUCCESSION
8. TESTAMENTARY EXERCISE OF POWER OF APPOINTMENT
9. CONCLUSION
10. REFERENCES

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INTRODUCTION

In the conflict of laws, the subject of succession deals with all procedural matters relevant
to estates containing a "foreign element" whether that element consists of the identity of
the deceased, those who may inherit or the location of property. When a person dies
his assets must be disposed of. It is the function of the law of succession to determine
how those assets shall be disposed of. The need for an orderly system for their disposal is
essential to the preservation of law and order. There are several methods that might be
adopted in disposing of a person’s assets. Firstly, complete freedom on the part of all
persons to determine the manner (generally intestacy rules) in which their property shall
be disposed of after death. Such a system requires a broad framework of rules as to how a
person shall set out his wishes as to the disposition of his property. Finally, a set of rules
or laws may prescribe the manner in which a person’s property is to devolve after
death. In England under Administration of Estates Act 1925 and in India under The
Indian Succession Act 1925, rules laid down to deal with the distribution of assets
of those who have not taken advantage of the privilege provided under above first method
but only effective to dispose of some not all of their assets. From the last two decades we
have seen extreme development of private international law throughout the world. Now,
aim and purpose is to ‘compare’ the law relating to succession mainly of England and
India, as it is still an open question how far law of succession works in cases where
foreign element is involved.

As to the testator, all questions of status and capacity should be determined by the
personal law at the time the decree is granted. Thus, if the decree is recognized, either the
status will be modified so that the testator was never married and this will retrospectively
validate or invalidate previous dispositions, or the testator is now single and able to
dispose of his assets in any way permitted by his personal law.

But as to the putative wife, any entitlement she will have will be determined by whether
the lex situs of any "matrimonial" assets recognizes the decree. If the decree is not
recognized, she will remain a wife for the purposes of succession protected by the local
system of mandatory heirship or community property laws.

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CHOICE OF LAW
Succession to Movables and Immovable: The Governing Law
Subject to certain exceptions, namely the formal validity of a will, wills in foreign
languages, and matters relating to construction of wills, succession to movables of a
deceased person is governed by the law of his domicile at the date of his death. 1 Again,
succession to his immovable is governed by lex situs (that is, the law of the place where
the immovable are situated).
Renvoi
The law that governs succession, testate or intestate, as per the choice of law rules, is the
internal or the local law of the country concerned to the exclusion of the rules of choice
of law of the forum.2

DISTRIBUTION OF PROPERTY OF HINDU PERSON AS PER

SUCCESSION LAWS – IF NO WILL
A written and a registered Will, is the best and most convenient way for you to pass on
your estate to the persons whom you want to. Now what happens if a person dies without
a will and to whom his/her property will pass on? The Hindu Succession Act 1956 is
quite clear about it.

1. If the Deceased is a Male

The property of a Hindu male dying intestate, or without a will, would be given first to
heirs within Class I. If there are no heirs categorized as Class I, the property will be given
to heirs within Class II. If there are no Class I or II heirs, then the property will first go to
agnates (distant blood relatives of male lineage) and if no agnates are available then to
cognates (distant blood relatives of male or female lineage). And if there are no cognates
then the estate will go to government. The detail is as under:
Class I Legal Heirs
The following relations are considered to be Class I heirs:

1
Sankaran Govindan v. Lakshmi Bharathi AIR 1974 SC 1764
2
R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid (dead) AIR 1963 SC 1

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• Son/Daughter
• Widow
• Mother
• Son/Daughter of a pre-deceased son (per-deceased means “already Dead”)
• Son/Daughter of a pre-deceased Daughter
• Widow of a pre-deceased son
• Son/Daughter of a pre-deceased son of a pre-deceased son (3 levels)
• Widow of a pre-deceased son of a predeceased son
The widow (or widows), mother and each of the children (son or daughter, the law makes
no distinction) take equal shares. Where one or more of such sons or daughters is no
more, then, the Class 1 heirs in that branch will all jointly stand in the place left behind
by such deceased son or daughter and shall take between them one share.
Class II Legal Heirs
In case no Class-I heirs are available, Class-II heirs, are considered. Among the heirs
specified in Class II, those who are mentioned first get the property simultaneously and in
exclusion to those in the subsequent entries. For example, if the father is no longer live,
then the second in list such as “(1) Son’s daughter’s son (2) son’s daughter’s daughter,
(3) brother,(4) sister” will get the property in equal measure, provided all the heirs are
available. However, whoever is alive will get the property in equal proportion.
• (i) Father
• (ii) (1) Son’s daughter’s son (2) son’s daughter’s daughter, (3) brother,(4) sister.
• (iii) (1) Daughter’s son’s son, (2) daughter’s son’s daughter , (3) daughter’s daughter’s
son, (4) daughter’s daughter’s daughter.
• (iv) (1) Brother’s son (2) Sister’s son, (3) brother’s daughter (4) Sister’s daughter.
• (v) Father’s father. Father’s mother.
• (vi) Father’s widow, brother’s widow.
• (vii) Father’s brother, father’s sister.
• (viii) Mother’s father, mother’s sister.
• (ix) Mother’s brother, mother’s sister
2. If the Deceased is a Female

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The property of a female Hindu dying without a will shall devolve according to the
following rules:
(a) firstly, upon the sons and daughters (including the children of any pre- deceased son
or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother. In case of a Hindu female dying intestate and
without any issue or any children or any predeceased children, any property inherited by
her from her parents shall not devolve upon her husband or his heirs but revert to her
natal family. Similarly, in case a Hindu female dies intestate and without any issue or any
children or any predeceased children, then any property inherited by her from her
husband or her father-in-law devolves upon the heirs of her husband. Thus, property
inherited from her husband would not devolve upon her father or his heirs.
Agnates and Cognates
If there are no heirs in Class II, the property will be given to the deceased’s agnates (a
male or female descendant by male links from a common male ancestor) or relatives
through male lineage (for example first cousin and their children). If there are no agnates
or relatives through the male’s lineage, then the property is given to the cognates (One
related by blood or origin with another, especially a person sharing an ancestor with
another), or any relative through the lineage of males or females (for example second
cousin and their children).
Certain Exceptions
• Any person who commits murder is disqualified from receiving any form of inheritance
from the victim.
• Full Blood preferred to Half blood
• If a relative converts from Hinduism, he or she is still eligible for inheritance. The
descendants of that converted relative, however, are disqualified from receiving
inheritance from their Hindu relatives, unless they have converted back to Hinduism
before the death of the relative.
• Widows remarrying are not entitled to inherit as widow.

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JURISDICTION
In the English law of succession is usually termed as beneficial distribution of property,
so has jurisdiction to grant administration and to determine beneficial distribution of prop
erty.
Whereas 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 abode at the time of his
death within the jurisdiction. Indian courts have declined to exercise jurisdiction in a case
of conflict of laws case, based on fixed place of abode of the deceased within the
jurisdiction. 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 in
view of Section 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,
such as when the courts of the country where assets are situated requires a grant of admin
istration from the court of domicile for the deceased. It is clear that the Indian court
would not assume jurisdiction to determine succession to the movables of the deceased
who died domiciled elsewhere and left no assets in India. But in case he died leaving
behind assets in India, then Indian courts have jurisdiction to determine the validity of his
will and allied matters relating to testamentary succession.
The situation with regard to jurisdiction of foreign court is that 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. It may be conjectured 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 courts also exercise jurisdiction on this
basis. The Indian position w.r.t is that there is no reported decision of Indian Court as to
on what basis the Indian Courts would recognize the jurisdiction of 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

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speaking, there is nothing like lex domicilii, they are
governedby their personal law, which is the law of their community. When the English co
urtdetermines 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. That the Indian
court should accept the assumption of jurisdiction by the foreign court on the same basis
on which it assumes jurisdiction.

LEGAL EFFECTS OF GRANT OF REPRESENTATION

The fact that a grant of letters of administration by a court stands unrevoked is conclusive
evidence that the deceased died intestate (that is without making a will).3 Similarly, the
fact that a grant of probate by a court remains unrevoked is conclusive evidence that the
instrument admitted to probate is the last will of the testator.4

INTESTATE SUCCESSION
It is a well established principle of conflict of laws in the common law world that
succession to movables intestate, wherever situated, is governed by the law of domicile at
the date of his death. The law of domicile is the governing law in matters of succession,
including the devolution of the property of the deceased which, inter alia, takes into
account issues such as the determination of the kindred of the deceased, share of the
widow, and whether the deceased has left lineal descendants.
Issues relating to succession to immovable of the deceased intestate are governed by the
lex situs.

TESTATE SUCCESSION
Capacity: Rule of Choice of Law

3
Tourton v. Flower (1735) 3 P Wms 369
4
Thornton v. Curling (1824) 8 Sim 310

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The personal capacity5 (as distinguished from the proprietary capacity) of a testator to
make a will of movables is governed by the law of his domicile. Conflicts rules draw no
distinction for this purpose between lack of capacity due to immaturity or status and
incapacity arising from ill health.
A beneficiary has the capacity to receive a legacy under a will if he has capacity either by
the law of his domicile or by the law of the testator’s domicile. This conflicts rule relates
only to movables. The lex situs governs capacity to make a will of immovable as well as
to take under the will.6

Formal Validity under Common law

A will of movables is valid if it is in conformity with the formalities prescribed by the
law of the testator’s domicile at the date of his death. Lex domicilii, as interpreted and
applied by courts in India, signifies reference to the internal law of India to the exclusion
of rules of choice of law (that is, to the exclusion of renvoi.)7
A will of movables is valid if it is in conformity with the formal requirements of the lex
situs.

Formal Validity of a Will under the Indian Law of Succession

The formal validity of a will under the Indian law of succession is same as it is under
common law.

Construction
The construction of a will is governed by the law intended by the testator.8 If it is a case
of a will of movables, the presumption is that the law of the testator’s domicile on the
date of execution of the testament will be the governing law. However, this presumption
is rebuttable if there is sufficient indication that the testator intended his will to be
5
When we talk of incapacity with reference to a will or testament, it ordinarily means proprietary
incapacity relatable to the nature of the bequest or devise, and which is deemed a question of material or
essential validity. The question of personal capacity, on the contrary, relates to restrictions which attach to
the person rather than the property of the testator such as, for example, physical and mental capacity,
capacity of minors and married women, and the like.
6
Ratan Shah v. Bomanji (1938) ILR Bom. 238
7
R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid (dead) AIR 1963 SC 1
8
Bradford v. Young (1885) 29 Ch. D 617

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construed according to the law of another country. The intention of the testator may be
expressed in the will,9 or may be implied from the circumstances such as his use of a
particular language, or of expressions known only to a particular law.
A will of immovable must, prima facie, be construed in accordance with the law of the
testator’s domicile on the date of execution of the will; but this presumption may be
rebutted if there is sufficient indication of the testator’s intention to refer it to some other
law, such as where he uses the technical language of the country where the immovable in
accordance with the laws of the testator’s domicile, will so construe it as to enable the
dispositions to operate to the fullest extent allowed by the lex situs.10

Wills in Foreign Languages

A will or a testament, even if it be purely local where there is no foreign element, brought
before a local court for probate, will be liberally construed by it; or, so to say, the court
will put itself into ‘the arm chair of the testator’, as the Privy Council in England once
remarked. Such an attitude on the part of the court will go a long way in rendering justice
to the testator and to the beneficiaries under the will. It is all the more so when a will
written in a foreign language is brought before the concerned local court to be admitted to
probate, translated into English or, as the case may be, into its (that is, court’s) regional
language. The court would then require, in keeping with the procedural due process, that
the foreign will or a copy of it to be furnished, accompanied by an English translation or,
as the case may be, a regional translation. The court in its discretion may refer to the
original will or a copy of it so as to adjudicate upon questions of construction. In such of
those cases where the will is to be construed according to the local law, the court’s
concern will be to look to the effect of the language in which it is written with a view to
ascertain what the equivalent expressions are in the language of the concerned court.11
Even if there be a need to construe the will or testament according to the law of the
country in whose language it is written, the court will not refer to that law for the
meaning of words which are not subject to any technical rules of construction under that
law.

9
Rephael v. Boehm (1952) 22 1 J Ch. 299
10
Studd v. Cook (1883) 8 App Cas 577
11
Reynolds v. Kortright (1854) 18 Beav 417

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Indian Rules of Construction
The following are the rules of construction of a will under the Indian Succession Act,
1925:
(i) It is not necessary that any technical words or terms of art be used in a will; but
the wording must be such that the intentions of the testator may be derived from
the will.
(ii) If the thing which the testator intended to bequeath can be sufficiently identified
from the description of it given in the will, but some parts of the description do
not apply, such part of the description is rejected as erroneous, and the bequest
takes effect.
(iii) The intention of the testator cannot be set aside because it cannot take effect to
the full extent; effect must be given to it as far as possible.
(iv) A will or bequest that is not expressive of any definite intention is void for
uncertainty.
(v) Where a property is bequeathed to any person, that person is entitled to the
whole interest of the testator in it, unless it appears from the will that only a
restricted interest was intended for him.
The material or essential validity of a will of movables is governed by the law of the
testator’s domicile on the date of his death. The same rule of conflict of laws has been
applied to issues such as whether the testator is legally obliged to leave a part of his
movable estate to his widow or to his children, or as legitima portio or legitim, as a gift of
movables to an attesting witness, to a charity, or for superstitious uses.

As per choice of law rules, the material or essential validity is governed by the lex situs.
Similarly, the same principle of conflict of laws has also been applied to issues such as
whether the testator is legally bound to leave a part of his immovable estate to his widow
or children, whether a gift of immovable to a charity is valid, and to issues relating to the
nature and incidents of the estates created in the immovable.

Election
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The question of election on the part of a beneficiary under a will arises only when the
beneficiary chooses to take a benefit outside the will, but which is given to another
person by the will, to the abandonment of a benefit given to him by the will. In such a
case, as it has nothing to do with the intention of the testator, the question is not one of
construction of the will but one of material or essential validity. Accordingly, by the
application of the rules of choice of law that, where the benefit under the will consists of
movables, the issue whether the beneficiary is put to his election is governed by the law
of the testator’s domicile at the date of his death, irrespective of the fact that the lex situs
of any immovable constituting the benefit happen to be outside the will.12 Similarly,
where the benefit under the will consists of immovable, lex situs of those immovable is
the governing law as respects the question of election, irrespective, once again, of the lex
situs of any immovable which may constitute the benefit outside the will, and irrespective
of the law of the testator’s domicile.

Testamentary Revocation
This issue whether a will is revoked by a later will or codicil, in case the later will or
codicil contains an express revocation clause, is one governed by the law that governs the
validity of the later instrument.13 As for its formality, it will be treated to have been
properly executed, if its execution is in accordance with the rules of choice of law.
Other testamentary modes of revocation probably are governed by the law of the
testator’s domicile in the case of movables and by the lex situs in the case of immovable.
As in the case of testamentary revocation, in the case of subsequent marriage, too, the
issue of whether the marriage would revoke a previous will of a movable is governed by
the law of the testator’s domicile on the date of the marriage. Any subsequent change of
domicile is immaterial. Similarly, the question of whether marriage revokes a previous
will of immovable is governed by the lex situs.

TESTAMENTARY EXERCISE OF POWER OF APPOINTMENT

12
Re Ogilvie, Ogilvie v. Ogilvie (1918) 1 Ch. 492
13
Cottrell v. Cottrell (1872) LR 2 P&D 397

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Logic and common sense would endorse the common law rule that a testator has capacity
in conflicts cases to exercise by will a power of appointment over movables if he has the
capacity to make the will by the law of his domicile, even if it be that he lacks such
capacity by the law governing the instrument of creation.
Likewise, a testator’s capacity to exercise by will a power of appointment over
immovable is governed by the lex situs. Again, an exercise by will of a power of
appointment in due compliance with the law that governs the essential validity of the
power is deemed to have been properly executed. Such an exercise of the power of
appointment under the will is not to be treated as improperly executed by reason only that
its execution was not in accordance with any formal requirements contained in the
instrument creating the power.
The issue of whether a will exercises a power of appointment will be determined, prima
facie, by the law of the testator’s domicile at the date of execution of the will. 14 If it is
evident that the testator intended the will to be construed in accordance with the law
governing the instrument of creation, or that powers of appointment are unknown to the
law of the testator’s domicile, the issue will be determined by the law governing the
instrument of creation.
The material or essential validity of the exercise by will of a power of appointment over
movables is governed by the law that governs that instrument of creation.15 However, if
the testator chooses to blend the appointed movables into one mass with his own estate,
he would then be endowed with the right to exercise his general power, in which case the
material or essential validity of the appointment is governed by the law of the testator’s
domicile at the date of his death.
The material or essential validity of an appointment of immovable by will is governed by
the lex situs.16
The issue of revocation by will of the exercise of a power of appointment is governed by
the choice of law rules.

14
Re Price, Tomlin v. Latter (1900) 1 Ch. 442
15
Pouey v. Hordern (1900) 1 Ch. 492
16
Re Hernando, Hernando v. Sawtell (1884) 27 Ch. D 284

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CONCLUSION
Under the Indian Succession Act, 1925, the administration of the deceased person’s
movable assets is governed by the law of the country where the deceased was domiciled
at the time of his death. Administration of assets carries with it the dual function of
collection of assets of the deceased and debts due to him and payment to the creditors of
their dues out of the assets. With respect to the administration of the assets of the
deceased, irrespective of whether the administration is principal or ancillary, the personal
representative will be governed by the lex fori. In the matter of administration, India does
not subscribe to the principle of ‘unity of administration’. In this regard, it is the same as
in England. Accordingly, a separate grant of letters of administration must be obtained
from a court in India in respect of the property of the deceased left in India. Under Indian
law, letters of administration in respect of intestate succession are granted to those who
are related to the deceased either through marriage or consanguinity in the order as
specified under the law, notwithstanding the fact that he had his domicile in a foreign
country whose succession law, testate and intestate, differs from the law in India.
Administration, as stated above, is confined only to the collection of assets of the
deceased and debts due to him, and the making of payments to creditors out of the assets.
It does not include the distribution of the deceased’s net assets after the payment of all
debts, duties, and expenses.

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REFERENCES
Following is the tentative list of references:

Books:

 V. C. Govindaraj, ‘The Conflict of Laws in India’, Oxford University Press, First

edition, 2011.
 Atul M Setalvad, ‘ Conflict of Laws’, Lexis Nexis.
 Dicey et. al., ‘The Conflict of Laws’, Sweet and Maxwell, 14th edition, 2008.

Weblinks:

 http://www.lawyerscollective.org/files/LCWRI%20INHERITANCE%20REPOR
T.pdf
 http://www.publications.parliament.uk/pa/ld200910/ldselect/ldeucom/75/7505.ht
m
 http://www.government.se/content/1/c6/02/77/80/d8a2b3f7.pdf
 http://ec.europa.eu/civiljustice/publications/docs/report_conflits_uk.pdf

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