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Will – TESTAMENTARY DISPOSITION – THE LAW – (Short notes)

TABLE OF CONTENTS:-
1. Will
2. Codicil
3. Will and Testament
4. Testamentary Disposition
5. Relevant Maxims

Will:–  “Will” shall include a codicil and every writing making a voluntary posthumous disposition of property, according to Section 3(64), General Clauses Act, 1897 . A will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. A will has three essentials i.e.

(i) it must be a legal declaration of the testator’s intention;

(ii) that declaration must be with respect to his property; and

(iii) the desire of the testator that the said declaration should be effectuated after his death. The essential quality of a testamentary disposition is ambulatoriness of revocability during the executant’s lifetime. The basic and fundamental difference between a will/testamentary disposition and a settlement/gift is that in the case of a will, the crucial circumstance is the existence of a provision disposing of or distributing the property of the testator to take effect on his death, whereas in the case of a gift, the provision becomes operative immediately and a transfer in praesenti is intended and comes into effect. A will is, therefore, revocable because no interest is intended to pass during the lifetime of the owner of the property. In the case of gift, it comes into operation immediately. Further, a gift takes effect by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. On the other hand, a “will” need not necessarily be registered. But the mere fact of registration of a “will” will not render the document a settlement. In other words, the real and the only reliable test for the purpose of finding out whether the document constitutes a will or a gift is to find out as to what exactly is the disposition which the document has made, whether it has transferred any interest in praesenti in favour of the settlees or it intended to transfer interest in favour of the settlees only on the death of the settlors, Mathai Samuel v. Eapen Eapen(2012) 13 SCC 80

 It 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. He is simply exercising a power to which he is entitled to under the usage of the institution. A nomination takes effect in praesenti. It is the declaration of the intention of the head of the mutt for the time being as to who his successor would be; therefore, although it is said that the usage in the mutt is that the power of nomination is exercisable by will, it is really a misnomer, because a will in the genuine sense of the term can have no effect in presenti, Sri Mahalinga Thambiran Swamigal v. Sri LA Sri Kasivasi Arulnandi Thambiran Swamigal(1974) 1 SCC 150. Will means the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death, See. Section 2(h), Succession Act, 1925. The words denote any testamentary document, [Section 31, Penal Code, 1860 .

Codicil

Codicil means an instrument made in relation to a will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the will, Section 2(b), Succession Act, 1925.  An instrument made in relation to a will. It has the effect of explaining, altering or adding to the dispositions made by a will. By fiction of law, the codicil, though it may have been executed separately and at a place or time different from the will, forms part of the related will, Bhagat Ram v. Suresh(2003) 12 SCC 35. A supplement to a will, containing anything which the testator wishes to add or any explanation or revocation of what the will contains. 

Will and testament —  Will is a translation of the Latin word “voluntas”, which was a term used in the text of Roman law to express the intention of a testator. It is of significance that the abstract term has come to mean that document in which the intention is contained. The same has been the case with several other English law terms, the concrete has superseded the abstract — obligation, bond, contract, are examples (Williams’ Wills and Intestate Succession, p. 5). The word “testament” is derived from “testatio mentis”, it testifies the determination of the mind. A Will is thus defined by Ulpians as “Testamentum est mentis nostrae justa contestatio in id sollemniter facta to post mortem nostrum valeat.” Modastinus defines it by means of voluntas. It is “voluntatis nostrae justa sententia, de eo quod quis post mortem suam fieri vult (or velit)”; the word “justa” implying in each, that, in order to be valid, the testament must be made in compliance with the forms of law. It means, “the legal declaration of a man’s intentions, which will be performed after his death”, Uma Devi Nambiar v. T.C. Sidhan(2004) 2 SCC 321. Testament is a disposition of personal property to take place after the owner’s decease, according to his desire and direction. Testamentary means ‘Given by will’; ‘contained in a will’.  A will (frequently, though unnecessarily, styled ‘Will and Testament’) is the valid disposition by a living person, to take effect after his death, of his disposable property.

Testamentary Disposition:-

Testamentary disposition mean disposition of the property which would take effect after the death, instead of eo instanti on the execution of the document. A testamentary disposition is generally effected by a will or by a codicil which means an instrument made in relation to a will extending, altering or adding to its disposition and is to be deemed to form part of the will, Pavitri Devi v. Darbari Singh(1993) 4 SCC 392.

Relevant Maxims:-

1.Testamenta latissimam interpretationem habere debent

Wills ought to have the broadest interpretation.

2. Testamentum est voluntates nostra justa sententia, de eo quod quis post mortem suam fieri velit

A testament is the just expression of our will concerning that which any one wishes done after his death. [2 Bl. Comm. 499]

3. Testamentum omne morte consummatum

Every will is completed by death. [Co. Litt. 232]

4. Testamentum, i.e. testatio mentis, facta nullo præsente metu periculi, sed cogitatione mortalitatis

A testament, that is, the witnessing of the mind, made under no present fear of danger, but in expectancy of death.

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