What do you mean by a will? Who is competent to make a will? Which property can be bequeathed by will? Can a bequest be made in favour of unborn person? When is a will void? (b) What is the distinction between Will and Gift?
Ans. Meaning of Will —According to S.3 of Hindu Succession Act, 1925, “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.” Under old Hindu law there was no mention of the alienation of property through will but modern jurists have accepted the fact that a Hindu can dispose of his property through will. According to Katyayana what is promised to be given on the event of death or desease, for religious purposes, must be given and if he dies without giving it, his sons can certainly be bound to give it Whatever remains after giving, has to be divided amongst the heirs of the deceased. Necessary Formalities for a Valid Will — It has now established that for every will it is necessary that it should be attested by two witnesses, however it is still not necessary that it should be registered. A will is to take effect after the death of the testator. Meaning of Codicil —A codicil is that document which is related to the will and discusses the mode of disposition, execution, alteration and modification of the will. Hence it is treated as a part of the will. Who is Competent to Make a Will ? Every major person of sound mind can dispose ofhis property by will. That person who has not attained majority under Indian Majority Act can not execute a valid will. No one can dispose of by will any undivided share or interest in a jointfamily. property. A father has a limited right to dispose of his property by will under Mitakshara school. The Supreme Court in S.N. Arya Muni Vs. M. L.Subramanayya Shad, A.I.R. 1972, S.C. 1229 has held that a coparcener or a father can not dispose of coparcenary property or any portion of it by will as the property on his death passes on to other coparceners by survivorship and no property remains thereafter to go to others by virtue of a will. Which Property can be Bequeathed ?—A Hindu cannot bequeath property which he could not have transferred during his lifetime. He can also not transfer by will any property by which, he affects the legal right of his wife or the right of maintenance of any other person. Mitakshara stated that any Hindu can bequeath following properties by will—(i) Separate and self-acquired property; (ii) Property of the sole surviving coparcener; (iii) Saudayiki stridhan, and other stridhan with the permission of her husband. But because after the passing of Hindu Succession Act vide S.14 she has been given absolute . tight, she can now transfer it by will without any constraint; (iv) The whole stridhan in the case of widow; (v) Impartible estate, unless it has not been prohibited by tradition. However, any coparcener even if he may be father, cannot transfer his coparcenary interest by will. Though father may make a gift of a small part of ancestral property yet he cannot transfer it by will. Where a coparcener, transfers by will his impartible coparcenary interest to a third party and his separate property to successive coparceners and if the coparcener chooses to accept separate property, they cannot object to the validity of will. In the same manner, the will by coparceners relating to family property will be valid, because when they jointly write a will, they do this as joint owners. When a coparcener transfers by will the coparcenery property with the permission of other coparceners the will shall be valid. The Supreme Court has held in Raghavamma Vs. Chechamma, 1969 S.C. 196, that where a coparcener executes a will with respect to his share in the coparcenary property and later on separates from the coparcenary, in that case the will turns to be valid as he became competent to execute such a will at the time of his death. According to S. 3 of Hindu Succession Act, 1956, even Mitakshara coparcener has become competent to transfer his undivided coparcenary interest by will. Any will executed with respect to coparcenary property by a ‘coparcener prior to the enforcement of this Act was not legally valid (if the testator had died prior to the commencement of this Act). Where the other members of the family give their consent or impliedly continue to act as per the conditions of will then it will be treated as family arrangement but not will. According to Dayabhag — Under the Dayabhag Law two more properties have been included—(i) coparcenary interest can be transferred by will; (ii) father can transfer by will, his self-acquired and the whole ancestral property. Revocation and Alteration of Will–Where a person becomes competent to execute a will relating to his property, then the will can be altered or revoked. But marriage does not revoke a will or codicil. Similarly birth of a son after execution of a will does not amount to revocation of will.
Other Rules Relating to Will–The following rules must be observed regarding the making of a valid will-. Property mentioned in the will must not be in violation of any law. In this context the decision of Tagore Vs. Tagore, is of much relevance. Can a bequest be made to an unborn person ?— It is necessary that the person in whose favour bequest is made is in existence actually or legally at the time of the death of the testator. But by Hindu Transfers and Bequests Act, 1914, the Hindu Disposition of Property Act, 1916 and the Hindu Transfers and Bequests (City of Madras) Act 1921, the above rule has been relaxed to some extent. Under the Hindu Succession Act, 1956 bequest in favour of unborn person can also he made under ccrtain contingencies. In fact in Hindu law there is no authority to support the doctrine against the bequest to an unborn person. Yet this doctrine has come to be engrafted by the decision ofjudicial committee in Tagore V.s. Tagore. It is submitted that the decision has been based upon wrong interpretation of the text in Dayabhag. But this case has been accepted since long, thus the maxim `communis error facit jus’ can also be applied to this case. When is a Will void ?—Any will or its part which got to be executed under fraud, coercion, or by force i.e., where the free will of testator was impaired, is void. The burden of proof is upon that person who claims that the will was executed by a person voluntarily upon free will of the testator. Although under Mitakshara Law a Hindu can not bequeath his interest in the undivided coparcenary yet he can validly bequeath his self-acquired property in favour of his coparceners and undivided share to third persons. Such a bequest will be valid under law. Any coparcener who is given this interest can decide and opt for taking the property after the death of the testator. He can also retain both the properties. (b) Distinction Between Will and Gift-
1. A will takes after the death of the testator. 2. It is not necessary that the subject-matter of the will must be in existence at the time of making the will. 3. A testator can revoke his will at any time without assigning any reason. • 4. In case of will the possession of the property is not delivered at the time of making the will.
5. The registeration of a written will is not necessary. 6. A will can be made in favour of an unborn person.
7. In case of will the acceptance of bequest by legatee is not essential.
1. A gift takes effect immediately when it is made by the donor. 2. The subject matter of gift must be in existence at the time of making the gift.
3. A donor can not revoke the gift without any reason.
4. If the subject of gift is movable property then the delivery of the possession is necessary but if the property is immovable the delivery of possession is not necessary. 5. The registeration of a written gift is essential. 6. A gift to unborn person can be made only when it is in confinnity with Ss. 13 & 14 of T.P. Act. 7. In case of gift the acceptance of gift by or on behalf of donee is essential.