Class Notes on Family Law II – Unit V (2nd Sem / 3 year LL.B)

Wills

Privileged Wills and Unprivileged Wills – Indian Succession Act

Privileged Will

A privileged will be a will written by a testator when he is:

1. A soldier employed in an expedition or engaged in actual warfare
2. An airman employed or engaged on expedition or warfare; and
3. A mariner at Sea

Requisites

1. May be made orally before two witnesses
2. If the testator is alive for one month after such oral declaration, then the privileged Will becomes invalid
3. The content of the Will can be written by another person but it must be signed by the testator
4. Attestation not necessary
5. It can also be written by another person under the direction of the testator
6. If he has given only instruction then such instructions can be considered as Will after his death

Unprivileged Will

Unprivileged will is a will written by any person other than the person included under the privileged will.

1. The testator must sign or affix his mark to the Will
2. If it is written under his direction, then it must be signed by other persons in his presence and by his directions
3. The signature or mark must be placed in the right place for giving effect to the Will
4. The Will must be signed by two or more attesting witnesses. Such witnesses must sign in the presence of the testator but at different times.

Revocation of Wills – Sec. 70 of the Indian Succession Act

• Subsequent will or Codicil
• Instrument of Revocation
• Destruction of a Will
• Subsequent marriage of the testator

Revival of a Revoked Will

• Express Revival: It is effected by re-execution. An unprivileged will by codicil, which has been revoked in any manner, shall be revived by re-execution showing intention to revive the same.
• Constructive Revival: Duly executed codicil showing an intention to revival.

Cheese Vs. Love Joy

Govinda Ramanuja Vs. Ram Charan Das

Interpretation or Construction of Wills

1. Technical words unnecessary
2. Admission of circumstantial evidence – Patent ambiguity and Latent ambiguity
3. Bequest to persons of incorrect description (Bireshwar Vs. Ardhachandar)
4. Doctrine of Benevolent construction (To give validity)
5. Consideration of the whole Will
6. Inconsistent bequests

Void Wills or Void bequests

Death of Legatee at the time or prior to the testator’s death

Will to unborn persons – Sec. 112

112. Bequest to person by particular description, who is not in existence at testator’s death.-Where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answers the description, the bequest is void.

Exception.–If property is bequeathed to a person described as standing in a particular degree of kindred to a specified individual, but his possession of it is deferred until a time later than the death of the testator, by reason of a prior bequest or otherwise; and if a person answering the description is alive at the death of the testator, or comes into existence between that event and such later time, the property shall, at such later time, go to that person, or, if he is dead, to his representatives.

Illustrations

(i) A bequeaths 1,000 rupees to the eldest son of B. At the death of the testator, B has no son. The bequest is void.

(ii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator, C had no son. Afterwards, during the life of B, a son is born to C. Upon B’s death the legacy goes to C’s son.

(iii) A bequeaths 1,000 rupees to B for life, and after his death to the eldest son of C. At the death of the testator, C had no son. Afterwards, during the life of B, a son, named D, is born to C. D dies, then B dies. The legacy goes to the representative of D.

(iv) A bequeaths his estate of Green Acre to B for life, and at his decease, to the eldest son of C. Up to the death of B, C has had no son. The bequest to C’s eldest son is void.

(v) A bequeaths 1,000 rupees to the eldest son of C, to be paid to him after the death of B. At the death of the testator C has no son, but a son is afterwards born to him during the life of B and is alive at B’s death. C’s son is entitled to the 1,000 rupees.

Bequest to person not in existence at testator’s death subject to prior bequest – Sec. 113

113. Bequest to person not in existence at testator’s death subject to prior bequest.- Where a bequest is made to a person not in existence at the time of the testator’s death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the remaining interest of the testator in the thing bequeathed.

Illustrations

(i) Property is bequeathed to A for his life, and after his death to his eldest son for life, and after the death of the latter to his eldest son. At the time of the testator’s death, A has no son. Here the bequest to A’s eldest son is a bequest to a person not in existence at the testator’s death. It is not bequest of the whole interest that remains to the testator. The bequest to A’s eldest son for his life is void.

Will or bequest violating the rule against perpetuity – Sec. 114

114. Rule against perpetuity.- No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the life-time of one or more persons living at the testator’s death and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to belong.

Illustrations

(i) A fund is bequeathed to A for his life and after his death to B for his life; and after B’s death to such of the sons of B as shall first attain the age of 25. A and B survive the testator. Here the son of B who shall first attain the age of 25 may be a son born after the death of the testator; such son may not attain 25 until more than 18 years have elapsed from the death of the longer liver of A and B; and the vesting of the fund may thus be delayed beyond the lifetime of A and B and the minority of the sons of B. The bequest after B’s death is void.

Bequest to take effect on failure of prior Interest – Sec. 116

116. Bequest to take effect on failure of prior bequest.- Where by reason of any of the rules contained in sections 113 and 114, any bequest in favour of a person or of a class of persons is void in regard to such person or the whole of such class, any bequest contained in the same will and intended to take effect after or upon failure of such prior bequest is also void.

Illustrations

(i) A fund is bequeathed to A for his life, and after his death to such of his sons as shall first attain the age of 25, for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B is intended to take effect after the bequest to such of the sons of A as shall first attain the age of 25, which bequest is void under section 114. The bequest to B is void.

Direction for accumulation – Sec. 117

117. Effect of direction for accumulation.- (1) Where the terms of a will direct that the income arising from any property shall be accumulated either wholly or in part during any period longer than a period of eighteen years from the death of the testator, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.

(2) This section shall not affect any direction for accumulation for the purpose of–

(i) the payment of the debts of the testator or any other person taking any interest under the will, or

(ii) the provision of portions for children or remoter issue of the testator or of any other person taking any interest under the will, or

(iii) the preservation or maintenance of any property bequeathed; and such direction may be made accordingly.

Bequest for religious and charitable purposes – Sec 118

118. Bequest to religious or charitable uses.- No man having a nephew or niece or any nearer relative shall have power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the wills of living persons:

“Provided that nothing in this section shall apply to a Parsi.”

Illustrations

A having a nephew makes a bequest by a will not executed and deposited as required—

• for the relief of poor people;
• for the maintenance of sick soldiers;
• for the erection or support of a hospital;
• for the education and preferment of orphans;
• for the support of scholars;
• for the erection or support of a school;
• for the building and repairs of a bridge;
• for the making of roads;
• for the erection or support of a church;
• for the repairs of a church;
• for the benefit of ministers of religion;
• for the formation or support of a public garden;

All these bequests are void.

Kinds of legacies

Protection of property of the deceased

Family Courts Act, 1984: Constitution, powers, and its functions

Need for Uniform Civil Code

Article 44 of Indian Constitution

Meanings

1. Codicil: A codicil is a document that amends, rather than replaces, a previously executed will.
2. Bequest: The act of giving or leaving personal property by a will.
3. Perpetuity: Time without end; eternity.