Report No. 110

35.14. Present position criticized.-

The pros and cons of the matter may be examined. On the one hand, the present position can be justified by stating that an executor is a person of the testator's own choice and the testator would not prefer someone else's judgment to his own-not even a judgment of the court. Apparently, on this principle, the law allows a testator to make the appointment of any person whom he likes as an executor and leaves the question of determining the fitness of that person absolutely to the choice of the testator.

As against this, one has to bear in mind the serious hardship which may possibly be caused if a person acts as an executor when he is not fit at all, and when (from the known facts), one can infer that the testator would not have continued the appointment. A situation may for example, arise where there is some interval between the date of the will by which the appointment was made and the death of the testator.

The person appointed as executor in the will might have become unfit after the will, the testator might have not been able to apply his mind to the question whether the appointment should be continued. The testator might even have mentally taken a decision to make another appointment, but might have found no time to effectuate it in a formal writing.

In a comment (on our Working Paper), forwarded to us1 by the Catholic Bishops' Conference of India, a query has been raised as to how the court will form the opinion that a person is "definitely" unfit to work as executor. It has been stated, that the action of the court would be arbitrary.

We do not, however, share this apprehension. No doubt, positive acts of past misconduct on the part of a person would be the best proof of his unfitness, but one need not rule out other situations where adequate material is placed before the court about the unfitness of a person to act as an executor. The court can be expected to act with judgment and discretion, and not arbitrarily, in all such matters.

1. Catholic Bishops Conference of India, letter dated 3rd October, 1984.