Answer By law4u team
In India, a person can generally disinherit a legal heir through a will, but there are specific legal limitations based on the type of succession law governing the inheritance, particularly in the case of Hindus, Muslims, Christians, and Parsis. While Indian law allows individuals to decide how their property will be distributed after their death, there are restrictions that ensure that certain family members, especially spouses and children, cannot be entirely excluded from inheritance in some cases.
1. Hindu Succession Act, 1956
Under the Hindu Succession Act, 1956, which governs the inheritance of property for Hindus, Sikhs, Buddhists, and Jains, a person can disinherit a legal heir, such as a son or a daughter, through a valid will. However, there are a few critical points to understand:
Freedom of Testamentary Disposition:
A Hindu testator generally has the freedom to distribute their property as they wish, including disinheriting children or other heirs. This means they can choose to leave their property to non-family members, charity, or any other individual of their choice.
Children’s Right to Maintenance:
While children can be disinherited, they still have a right to maintenance during the lifetime of the testator (if they are minor or unable to support themselves). This right may persist even if the child is disinherited in the will.
Widow’s Right:
The widow (wife) of the testator has a statutory right to maintenance during her lifetime. She cannot be entirely disinherited, although her share of inheritance could be reduced.
Section 125 of the Indian Succession Act:
This section also provides that a will cannot deprive a widow of her legal right to property under Hindu law. Thus, while a will may exclude certain heirs (like sons or daughters), it cannot strip the widow of her legal right to be provided for.
Right of Daughters in Coparcenary Property:
The Hindu Succession (Amendment) Act, 2005, granted daughters equal rights in ancestral (coparcenary) property. Even if a will seeks to exclude daughters from inheritance, they are still entitled to a share in such property under Hindu law.
Example:
If a Hindu father has two sons and a daughter, and he executes a will that leaves all his property to one son, the daughter and the other son could be disinherited, but the daughter still retains a right to a share in ancestral property.
2. Muslim Personal Law
Under Muslim Personal Law, there is no absolute testamentary freedom like under Hindu law. Sharia law dictates fixed shares for legal heirs, such as children, parents, and spouses, which cannot be completely altered by a will.
One-Third Rule:
A Muslim testator can only bequeath up to one-third of their estate through a will to individuals who are not already entitled under Muslim inheritance law (like non-heirs, charity, or friends).
Mandatory Shares:
The remaining two-thirds of the estate must be distributed according to Shariah law to the legal heirs. The shares of the legal heirs (spouse, children, parents) are predetermined and cannot be reduced or excluded through the will.
Cannot Disinherit Children:
A testator cannot disinherit children completely. Even if the will attempts to do so, children will still receive their obligatory share under Sharia law.
Example:
If a Muslim father tries to disinherit his daughter through a will, she will still receive her fixed share according to Sharia law, which is half of the son’s share.
3. Indian Succession Act, 1925 (For Christians and Parsis)
Under the Indian Succession Act, 1925, which governs the inheritance of property for Christians and Parsis, a person has more freedom to disinherit heirs compared to the personal laws of Hindus and Muslims.
Testamentary Freedom:
Christians and Parsis have wide discretion in drafting their will, and they can exclude legal heirs (such as children, spouses, or parents) from inheritance.
Exclusion of Spouse:
In the case of Christians, a spouse can be completely excluded from the will if the will explicitly states so, though this is uncommon and may be contested.
Children:
Similarly, children can be disinherited under the will, but if no will is made, they inherit according to the law of intestate succession.
Example:
A Christian testator can draft a will excluding one of their children from inheritance, leaving the property to another child or a third party, provided that the will is validly executed.
4. Legal Implications of Disinheriting a Legal Heir
While disinheriting a legal heir is possible, there are several important legal implications and potential complications:
Contest of the Will:
A disinherited heir may choose to contest the will in court, claiming it was executed under undue influence, fraud, or when the testator lacked testamentary capacity.
Provision for Maintenance:
In cases of Hindu law and certain personal laws, even if a legal heir is excluded from the will, they may still have a right to maintenance if they are unable to support themselves.
Right of Children in Ancestral Property:
Under Hindu law, daughters have a right to ancestral property even if excluded from a will, and this cannot be altered by the will.
Example Cases:
Hindu Case:
A father may exclude his eldest son from the inheritance by writing in the will that the son will not inherit anything. However, the son could still challenge the will if there’s evidence of undue influence or if the father was not in his sound mind when executing it.
Muslim Case:
A Muslim testator may try to bequeath his entire estate to a charity, excluding his children. However, his children will still receive their legal share under Muslim inheritance law.
Christian Case:
A Christian father may disinherit one of his children in the will, leaving the entire estate to the other child. The disinherited child can contest the will, but the court will generally uphold the testator’s wishes, as long as the will is legally executed.
