Spes successionis is a Latin maxim which refers to a person’s mere possibility of succeeding in a property after his death. By will or succession, the heir to a deceased expects to inherit a property. Such anticipation does not constitute a property interest and it cannot be transferred. The term spes successionis only refers to the future possibility or expectation of succeeding to a property, also known as succession expectation, i.e., the having a chance or expecting the inheritance of property through succession. This means that spec successionis is not a right over the property. It might not be a title, but it may provide some comfort to risky lenders.
In English law, spes successionis transfer is prohibited, but not in its entirety. If there is a consideration attached to the transfer of spes successionis, it is considered as valid. So, if someone transmits his only chance of success as a gift, it is null and void. However, it will be a valid transfer in the future when the person acquires ownership of the property if that opportunity is sold for consideration.
SPES SUCCESSIONIS – AN EXCEPTION TO TRANSFERABILITY
The rule of transferability of Spes successionis is based on the following legal maxim – “alienation rei prefertur juri accrescendi.” This maxim states that the law prohibits all interference with an individual’s right to alienation or transfer, unless the same is prohibited by a statue, and the law prefers alienation to property accumulation. One has the right to transfer their property if they have a valid title; i.e., there are no restrictions on the sale of a property owned by them. The owner of the property also possesses the right to transfer said property to anyone he wishes to.
Under Indian Contract Act, 1872 any alienation made by force or under duress is void. Hence the right to transfer of property to another person is encapsulated in the right to property. Any person who claims that any kind of property is not transferable must provide proof. Spes successionis is an exception to this general rule. Under section 6(A) the Transfer of Property Act, 1882 (hereinafter known as ‘the Act’), the transfer or alienation of mere expectation of succession is prohibited. As a result, non-transferability is an exception to the general rule of property transferability.
SPES SUCCESSIONIS AND PROVISION
Property of any type can be transferred unless in any other case furnished through the Act, so transferability of belongings is a general rule and is enforced through section 6. This section also provides for the exception to this rule.
According to Section 6(A) of the Act, the transfer of spec successionis is an exception. It includes the following provision:
- Possibility of apparent heir to inherit property: It is assumed that the heir is different from legal heir. When a person dies intestate, the legal heir is the individual who has the legal right to inherit the property; however, the potential heir is the person who is awaiting inheritance but has ownership. Therefore, a potential heir is someone who wants to become a legal heir and inherit the property of propositus in future. Apparent heir depends on uncertain future events, such as he must be preserved in the proposal and the propositus must die without a will. Therefore, the heir can only obtain the right to the deceased’s property if the above conditions are
- Chances of relative inheriting a legacy following the death of a relative: The possibility of a will is only the ability to have the will to obtain specific inheritance rights in the future; after the death of the testator, it is possible or expected that friends or relatives will obtain property according to their own wishes. The inheritance options are very similar because they have neither property rights nor expectations. Compared with the possibility of inheriting the heir, relatives or friends are even more likely to obtain inheritance and are not transferable. The will is not valid when it is signed but is only valid after the death of the person who is signing the will i.e., testator. The person inheriting the property through a will must meet two conditions: a) he shall survive the testator, and b) he must be the person who is named in the will. In case of two or more wills that benefit different people, only the testator of the last will is entitled to a professional
- Hypothetical possibility of a similar nature: Other possibility of similar kind will imply some potential interest or property, as uncertain as the possibility of the apparent heir. The main purpose of section 6(A) of the Act is prohibition of the property transfer that is purely an interest that may be uncertain in the future. Therefore, this section not only excludes the possibility of an heir or apparent heir, but also excludes any other possibility in future to acquire property that is not currently the fixed right of the assignor. The term similar nature means that the possibility mentioned here must belong to the same category as the genetic potential of the potential heir or the relative. In this case, fishing nets are common example of the possibility.
Therefore, according to the general law, if there are no legal restriction, all types of property can be transferred. Section 6 of the Act makes of all types of property transferable, with a few exceptions. Spes successionis is one of the most important exceptions, wherein the heir who receives the property to exclude it from consideration, must comply with the contract concluded when the property does not exist. The possibility of obtaining a will from a relative, or any other similar possibilities that are deemed void ab initio, are covered by section 6 of the Act.
Author(s) Name: Riya Singh (Student, NMIMS Bangalore)
  ALL 55,  ILR 47
  Ker 298,  KLJ 442
 Transfer of property act, sec 6, 1882
- William J. Stewart, Collins Dictionary of Law (3rd edn, Collins, 2006)
- Mulla, Transfer of property act (7th edn, Lexis Nexis, 2013)
- Vaish associates advocates, “Burden of Proof Under the Indian Evidence Act, 1872” , https://www.mondaq.com/india/court-procedure/618426/burden-of-proof-under-the-indian-evidence-act-1872