What is the difference between will and gifts? Who is capable of making wills and what property may be bequeathed by will ?

Ans. Wills.—A will is the legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death (Section 3, Indian Succession Act). Harita also says, “A promise legally made in words, but not performed in deed is a debt, of conscience both in this world and the next”. Every will or codicil made by a Hindu is now required to be in writing and attested by at least two witnesses, but it does not require registration to make it valid. (Ishar Fatima Bibi v. Anwar, AIR 1929 All. 548). Meaning of `codicil’.—A codicil means an instrument made in relation to a will and explaining, altering or adding to its disposition and shall be deemed to form part of the will.

Gifts.—’Gift’ is defined as the relinquishment of one’s own rights of one’s property and the creation of the right ofanother in the same property.

Distinction.—The law of wills in India has, as in every other country, followed the law of ‘inter vivos’ and now they are exactly similar with tHfe difference that gifts take effect at once, whereas will take effect at the death of the testator, and therefore, the legal effect of a will is to be ascertained by the state of circumstances existing at the death. A will is revocable whereas a gift is not.

Person capable of making will.—Every Hindu who is of sound mind and has attained the age of majority, may dispose of his property by will subject, however, to the limitation and provisions contained in the Chapter. According to Section 30 of the Hindu Succession Act, 1956, “Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him or her in accordance with the provisions of the Hindu Succession Act, 1925 or any other law for the time being in force and applicable to Hindus.

Explanation.—The interest of a male Hindu in a Mistakshara coparcenary property or the interest of a member of a Tarward, Tavazi. Illom, Kutumba or Kavaru in the property of the Tarwad Tavazi, illom. kutumba or kavaru shall notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or her within the meaning of this section. A bequest can be made in favour of a person or persons in succession who are in existence at the date of the death of the testator (BastiRant v. Iced Prakash, AIR 1974 Punj. & Hat, 152).

What property could be given by will (Old Hindu Law).—A Hindu cannot dispose of any property by will which he could not have given by gift inter vivos.

Mitakshara.—According to the Mitakshara school no coparcener could dispose of by will the whole or any part of the joint family property. He Could not do so even with the consent of the other coparceners.

Dayabhaga.—According to the Davabhaga School, however, a coparcener may dispose of the whole of his interest in the joint-family property, and the father may even dispose of the whole of his interest in the joint-family property. The sole-surviving coparcener may dispose of the whole of the joint family property as if it were his separate property subject to the claims of maintenance, if any. A Hindu female could dispose of by will her Stridhana.

Will of separate property—A Hindu may dispose of by will his separate property in any manner he likes. He may disinherit his son or other heirs and give away the whole of his self-acquired property to a stranger, but notwithstanding express directions in a will that the heirs shall not take, they will succeed to the estate on an intestacy whatever be the cause of such intestacy fragore v.Tagore, 9B.L.R. 377/.

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