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the legal declaration of the intention of a person with respect to his property, which he desires to take effect after his death. It is a unilateral document and takes effect after the death of the person making it. It can be revoked or altered by the maker of it at any time he is competent to dispose of his property.
A legal will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. However Mohammedan are not governed by the Indian Succession Act, 1925 and they can dispose their property according to Muslim Law
When a will is evoked by a subsequent will, the will so revoked will have no operation
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 that description, the bequest is void.
For example, If A bequests 1000 rupees to the eldest son of B. At the death of A, the testator, B has no son. The bequest is void.
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.
For example, If property is bequeathed to A for life, and after his death to his eldest son for life, and after the later’s death 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 testators death. It is not a bequest of the whole interest that remains to the testator. The bequest to A’s eldest son for life is void.
No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime 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.
For example, A fund is given 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. The son of B who shall first attain the age of 25 may be a son born after the death of the testator; and such son may not attain age of 25 until more than 18 years have elapsed from the death of and B. The vesting of 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.
If a bequest is made to a class of persons with regard to some of whom it is inoperative by reasons of the fact that the person is not in existence at the testator’s death or to create perpetuity, such bequest shall be void in regard to those persons only and not in regard to the whole class.
A fund is bequeathed to A for life, and after his death to all his children who shall attain the age of 25. A survives the testator, and has some children living at the testator’s death. Each child of A’s living at the testator’s death must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may have children after the testator’s decease, some of whom may not attain the age of 25 until more than 18 years have elapsed after the decease of A. the bequest to A’s children, therefore, is inoperative as to any child born after the testator’s death; and in regard to those who do not attain the age of 25 within 18 years after A’ death, but is operative in regard to the other children of A.
Where by reason of any of the rules contained in sections 113 and 114 and bequest in favor of a person 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.
A fund is bequeathed to A for his life, and after his death to such of his sons and 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.The bequest to B is void.
Where the terms of a will direct that the income arising from any property shall be accumulation 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.
The registration of a will is not compulsory. However, the testator may register the will or deposit the will in a sealed cover with the Registrar. There is no time limit for registration
The Hindu Adoptions and Maintenance Act, 1956, has for the first time codified the duty of the heirs to provide for by them. A Hindu wife is entitled to separate residence and maintenance in cases coming under s. 18 of the Act. A widowed daughter in law, illegitimate children, infirm parents and others all come as dependants. But s. 30 of the Hindu succession Act gives a Hindu power to dispose of his estate by will. Under s. 27 of the former Act, a claim for maintenance is not a charge on the estate; it can therefore be defeated by a will.
An executor may be appointed by the testator himself or he may ask another to make the appointment. He only is entitled to probate of the will of a deceased person under section 221 of the Indian Succession Act and most importantly he is the legal representative and all the property of the deceased vests in him for the purpose of representation and administration. However, it does not mean that he becomes the actual owner of the property. An executor has no beneficial interest in the property which vests in him under section 211 of the Act moreover, he holds the same in trust for the administration of the estate of the deceased.
A probate court is a court of conscience. A probate when granted establishes the legal will from the death of the testator and conclusive as regards execution according to the law of the country. The persons standing in confidential relationship cannot take any benefits under a legal will unless he can establish that the testator had competent and independent legal advice.