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SUCCESSION
Module IV
s.30 HSA, 1956
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
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
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
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
Exceptions
Gift is deferred by reason of prior
bequest
It is otherwise deferred
2. Life interest to unborn
person
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