TESTAMENTARY

SUCCESSION
Module IV
s.30 HSA, 1956

Right to testamentary disposition for

a Hindu male
After 2005, to Hindu female in
coparcenary property
S.P is explicitly covered & HJF in
explanation
Dayabhaga law- Father/any
coparcener already has this right
because the shares are already fixed
before HSA, 1956- limited estate for
Testamentary disposition
ISA, 1925
S.57- the whole part on wills is
applicable to any Hindu, Jain, Sikh or
Buddhist
S.58- Non applicability of the Part VI
to Mohammedans

Wills:
Takes effect only after the death of
the person
Disposition is ambulatory in nature
Who can create wills?

S.59
1.) Married women: which she
Not
a may alienate
Minor 2.) Deaf/Blind/dumb: are not
thereby incapacitated
3.) Insane: Can make when he
Of
is of sound mind
sound 4.) Intoxication/illness/from any
mind other cause does not know what
he is doing: No t capable
Testators capacity
Sound & disposing memory & mind
Its conditions:
1. Testator must understand that he is giving his
property to one or more objects of his regard
2. He must understand and recollect the extent
of his property
3. He must also understand the nature & extent
of claims upon him both of those whom he is
including in his will and those whom he is
excluding from the will
 Soundness is a question of fact
Physical & mental fitness are very
important factors which influence
the rationality of the will making
BOP to prove the soundness of the
testator -except in claims of insanity
Same principles apply to codicils also
 Palani Velayutham Pillai v.
Ramachnadran, 2000, SC
A testator executes two wills on
same day
trust for performance of religious
charity
Bequest of his personal properties
Execution of one was admitted &
others mental capacity was
challenged
Court Held: the parties cannot
blow hot and cold admission of
Sir Tharia Topan Will case,
1922, PC
A will and 5 codicils of a Khoja propounded
for probate
Last codicil was made just 3 days before
death
Widow- probate of all the codicils & will
Son- Probate only for will & first 2 codicils

Trial- Sons plea allowed

Appeal- same
PC- will and 4 codicils were allowed
When instructions to will are
given
Depends upon the facts validity is
determined
If instructions are given in sound
mind & its carried out in faithful
manner, even if the testator doesnt
understand what he is doing after, it
will be considered as a valid will
Battan Singh v. Amirchand, 1948, CA
s.60- Testamentary
Guardian
Power to father
No need for probate

s.61- Will obtained through fraud/coercion

or importunity
Fraud s.17 of ICA, 1872
Misrepresentation & Concealment
Coercion- s.15 of ICA, 1872
Importunity/ undue influence- s.16 of
ICA, 1872
Unprivileged &
Privileged Wills
Unprivilegedwills a will by a
testator who is - not a soldier
employed in expedition/
engaged in actual warfare
-not an airman
- not a mariner at sea
Privileged wills- A will by a testator
who belongs to any category above
mentioned
Execution of unprivileged
wills(s.63)
Testator
Sign
Signed
Each toofbe
by
/witness
under
2/more
his
todirection
witnesses
sign in some
presence
otherof
person
the testator
-
Leela Karwal v. JD Karwal, 1986, All HC

I GuruDatt Karwal s/o Shri Dev Chand

Retd Professor
 The person signing on behalf of testator
should sign for the testator & not his
He should be someone other than the
witness
The witness should have animus testandi
/intention to attest the documents
This attestation by the witness needs to be
seen by the testator and acknowledged
Scribe can be attesting witness if he/she
had necessary animus testandi
s.65- Privileged Wills

N. A. to Hindus
It can be made by any soldier,
airman or mariner who is above 18
years and also who is in actual
military service
It can be oral/written
It need not be attested
this privilege can be availed only
when engaged in actual warfare &
not otherwise
 An affidavit is required to be
produced declaring the time of
making the will & was in actual
expedition
In absence of the affidavit, there can
be affidavits of 2 disinterested
persons who say that it was signed
by the testator
Re Jones Case, 1981
Corporal of parachute regiment
s.66- Execution of privileged
wills
Itcan be oral/written
oral:
- it should be made in front of
witness
- it will be void after 1 month the
soldier, airman or mariner have
ceased to be entitled to make
privileged will
written:
- by testator- no need for witness/
 If written by another wholly/partly-
signature is necessary
If not signed- Upon sufficient proof of
testators direction/ that he
recognized it as his will
ATTESTATION

Any person including minors can

Merely witnesses the signature of
testator
Any executor/legatee appointment/
legacy/ bequest/ will be void
Re Young case, 1950
Manekshaw v. Motishaw, 1956,SC
N.A. to Hindus
But if legatee signed for codicils, not
affected
 REVOCATION OF WILLS

Upon marriage(s.69)

Exceptions:
- Property bequeathed by the
executor who is empowered to do so
- Hindus & Muslims
- Mutual wills
- Marriage is void
Revocation of unprivileged
will/codicils(s.70)

Marriage
By making a codicils/another will
Any writing which declares the
intention to revoke the will
Burning/ tearing/ Destroying the will
by testator or by some other person
upon his direction & his presence
with intention of revocation
Exhaustive provision
Another will/codicil or any
writing
The writing must be with the intention of
revoking the former one
An invalid will cannot repeal any valid will
Theclaimed two will should be such that
each cannot exist when the other exist
Revocation of will does not revoke a codicil
If each of the codicil & will are inconsistent
with each other, neither can be admitted
for probate
 Animus revocandi
While destroying the will, it must be with the
intention of revoking
It can revoked in part also
No need to be revoked in full slightest
actions are also sufficient if its with intention
A will once revoked by subsequent will
cannot be revived back by revoking the 2 nd
will
Cancellation of will/striking off will- not a
mode to revoke wil
Revoking privileged
wills- s.72
By creating an unprivileged
will/codicil
Any act expressing an intention to
revoke, accompanied by such
formalities as would be sufficient to
give validity to a privileged will
By burning or destroying the will by
the testator or by some other person
in his presence with intention to
revoke
Revival of unprivileged
will
1.Republication
2.Revival
Apart from these 2 process, any
will/any part of it cannot be revived
Re Baker, Baker v. Baker, 1929, Ch D
A
2nd will
codicil
&
which
Will &
Codicil-
1893
REVOKED
codicil
1907-
revokin
referre
d only
1st will
g the
&
1st
codicil
Doctrine of dependant
relative revocation
One testamentary disposition
Second testamentary disposition to
revoke the first
If 2nd document is not legally valid or
does not clears to revokes the will
The 1st document is not revoked &
remains valid
Construction of
wills(ss.74-111)
Notechnical words- if used only in
legal sense

to draw such sums of money as

she may require for her
maintenance
Clear & unambiguous dispositive
words are not to be controlled or
qualified by any general expression
of intention
Extrinsic evidence
admissible
When the will is ambiguous or
possible for double interpretation

I bequest my whole property to

my girl, Susan

If suppose, the extrinsic evidence is

itself unclear/undecided, the court
can interpret the will without the
support of the same
 Armchair Rule(s.75)

The court is entitled to put itself

In the testators armchair
Navneet Lal v. Gokul,
1976, SC
The court must in such cases
consider surrounding
circumstances, the position of
testator, his family relationships,
the probability that how he
would use such words in
particular sense.
 Mary Benyons
illegitimate
daughter
Elizabeth

A MARY, ANN &

ELIZABETH
children of
Mary Benyon
Misnomer/Misdescription of
object- s.76

DEEPA DEEPIKA

Ramachnadran v. Govindaraju,
1992, Mad HC
 Facts at the time of making will is
taken into consideration & at the
time of death of testator
Words material to full expression is
omitted can be supplied by the
context
If the bequeathed property is
identifiable but lacks certain parts-
its valid
Latent & Patent
Ambiguity
An ambiguity arising on face of the
will itself & an ambiguity which
arises when the terms of the will are
applied to existing facts.

Parol
Evidences are allowed only in
Latent Ambiguity

Ex: Blank space & Name

Entire will to be read
fully
Meaning of any clause needs to be
collected from the entire will

Dr.Venugopal(died) & ors v. Dr.

Jayakumar (dead) & Ors, 2010
Harmonious
Interpretation
Terms & Conditions in will should be
harmoniously interpreted
If there are two clauses of gift
irreconcilable latter one prevails

Words of Limitation & Purchase

Purchase- who takes
Limitation- quantum of interest taken
VOID WILLS- s.89

Will not expressive of intention

Void for want of uncertainty
Uncertainty can be as to
- object of devise
- subject of devise
It is used only if the court utterly fails
to attribute intention of the testator
3 possibilities

1. Testator himself indicate the

property as well as the person of
interest
2. Testator himself does not make
selection, but nominates another
person for the same
3. No selection of property or
indication to other person to select,
but will is not void also
Court presumes the legatee has
Bai C v. Dady N., 1902, Bom
HC
Aftertestators wifes his
trusteeshould bestow certain
property of his & the income thereof
upon some one or more
charitable, educational or other
philanthropic institution calculated
to promote the public good as
they shall in their discretion
Void bequests

1. Legatee of a particular description

not in existence at the testators
death(s.112)

Exceptions
Gift is deferred by reason of prior
bequest
It is otherwise deferred
2. Life interest to unborn
person

Property bequeathed to unborn will

be void unless the whole of
beneficial & also remaining interest
is given to the unborn child
2. Life interest to unborn
person
Property bequeathed to unborn will
be void unless the whole of
beneficial & also remaining interest
is given to the unborn child
Remaining interest= prior interest +
interest of unborn child should
exhaust all his interests fully
3. Rule against perpetuity-
s.114
Bequest delayed beyond the life of
existing persons & 18 years is void

Aniruddha v. Arabinda, 1949, PC

4. Bequest to take effect on

failure of prior interest(s.116)
5. Bequest to charity-
(s.118)
A bequest to charity by a testator who has
nephew/niece/other nearer relations unless
created 12 months before & deposited to
registrar within 6 months of execution

It is applicable only to Christians

Challenged in John Vallamattom v. UOI,

2003, SC

Itwas declared as unreasonable, discriminatory

& arbitrary
CONTINGENT BEQUESTS

Contingent subject to condition

precedent dependant upon the
happening/not happening of an
event, which may or may not happen
Legatee does not control any events
Bequest is effective only upon the
condition precedent
Contingent interest & vested interest
- Lallu v. Jagmohan, 1896, Bom HC
A legacy bequeathed in case a
specified uncertain event shall
happen/not, does not vest until that
event happens/does not happen
Here , the interest is contingent

ONEROUS BEQUESTS
S.122
good and bad things come together
Conditional Bequests(s.126 &
s.127)
Conditional precedent & subsequent
CP is void if its impossible to
perform/ is immoral or illegal
CS is void if its impossible to
perform/postponed indefinitely the
bequest ceases to have effect
Doctrine of Cypress- as near as
possible(s.128)
Lapse of Legacy- s.105

Mukes
h K.G.
v.
Prabha
V.
& Ors
Legacy doesnt lapse

Intention to contrary
Reminder of life to another legatee
Two persons jointly- survivorship
Bequest to child/other lineal
descendents
Trustee for another
Bequest is to a class
Ademption of Legacy-
s.152
Abatement of Legacy-
s.327
Payment of debts
Necessary Expenses
Specific Legacies
Payment in General Legacy is to be
abated in equal proportions; &
In absence of Contrary Intention
Executor has no right to pay one
legatee in preference or retain it to
himself/for whom he is trustee
Probate of Wills

Applies to all including Muslims

Probate s.2(f)
It is to be granted only to testator
appointed by the will expressly/by
implication (s.222)
Granted only to those persons who
are not-
1. Minors
2. Unsound
3. Association of individuals unless
Whom to approach????
District Judges/HC appointed District
Delegates
Petition for Probate shall have(s.276)
1. Time of testators death
2. Document of last testament
3. Duly executed
4. Amounts of assets
5. Petitioner is the executor
7 clear days for probate & 14 clear days for
administration from date of death of testator
Difference Between Executor
ADMINISTRATOR
& Administrator Intestate
Court through
EXECUTOR letters of
Testamentary administration
will/codicil
Property vests only
Property vests in after LOA
him as soon as
No power to do
testator dies valid discharges
Do valid before the grant of
discharges before LOA
probate also
14 days
7 days
Powers of
Executor/Administrator

1. Same power to sue in respect of all

causes of action that survive the
deceased including the recovery of
debts(s.305)
2. Power to dispose off the property as
he thinks fit subject to the
will/consent of court (s.307)
3. Power to incur expenditure for the
proper protection & preservation of
the property(s.308)
Duties of an Executor/
Administrator

1. Duty to pay the necessary funeral

expenses, probate charges & labour
wages, if sufficient property is left
for the same(s.316)
2. Duty to submit inventory detailing
upon the assets & liabilities of the
properties which he is in possession
within 6 months & another
inventory showing how much is
disposed of and proving his
3. Payment of creditors equally &
rateably as far as the assets of the
deceased will extend w/o preference
to one creditor over the other(s.323)
Bai Meharbai v. Maganchand,
1904, Bom

4. Payment of legacies subject to

indemnity for the same(s.326)
Revocation of probate/LOA-
s.263
For any just cause like-
1. Proceedings to obtain the grant
defective in substance
2. Fraudulently false
suggestion/concealed
3. Untrue allegation
ignorantly/unadvertantly made of a
fact essential for grant
4. Grant becomes useless &
inoperative through circumstances