Report No. 110

Construction of Wills: Sections 74-111

(64) To section 89, an Explanation (regarding bequests for Dharma) should be added on the lines of section 10, Bombay Public Trusts Act, 1950.1

1. Para. 16.26.

(65) The various rules as to construction of will, contained in section 99 are intended to be applicable only if a different intention is not disclosed. This should be made clear by inserting, in section 99, at an appropriate place, in the words "in the absence of any intention to the contrary."1

1. Paras. 16.39 and 16.46.

(66) The following Explanation should be inserted in section 99 on the subject of a child in the womb:

"Explanation-For the purposes of this section, a child is presumed to have been in the womb at time of death of a person if the child was born within three hundred and fifteen days of such death."1

1. Paras. 16.45, 16.47 and 16.53.

(67) But if the illustration is to be retained at all, then illustrations (vii) and (viii) should be amended, so as to incorporate the reasoning on which the view taken in the illustrations is based. In illustration (vii), the words "since it would be against public policy" should be added at the end. And, in illustration (viii), the words "since there is evidence of contrary intention" could be added at the end for the purpose.1

1. Para. 16.64.

(68) Section 100 should be suitably re-drafted so as to refer to a reputation or relationship, but not necessarily a reputation of legitimacy. The object could be achieved by substituting, in place of the words "being such relative", the words "being a child, son or daughter or otherwise standing in the relationship in question".

Revised section 100 would then read thus-

"100. In the absence of any intimation to the contrary in a will, the word "child", the words "son", the word "daughter", or any word which expresses 'relationship, is to be understood as denoting only a legitimate relative, or, where there 'is no such legitimate relative, a person who has acquired, at the date of the will, the reputation of being a child, son or daughter or otherwise standing in the relationship in question."1

(This recommendation to be carried out, only if the alternative recommendation to revise the section is not accepted).2

1. Para. 16.61.

2. See infra (summary of paras. 16.72 to 16.76).

(69) Section 100, illustration (vii), is anachronistic. Both from the juristic point of view and on wider considerations of social justice, a bequest to an illegitimate child, whether already begotten or otherwise, should not be regarded as against public policy. In the Transfer of Property Act, 1882 there is no provision corresponding to section 100, illustration (vii), as regards gifts during life time and there is no reason for retaining any such provision in the law of testamentary succession.1

1. Para. 16.69.

(70) Illegitimate children should be regarded as prima facie included with in, the scope of relationship, in the absence of expression of a contrary intention. If a person begets an illegitimate child, it would not, in general, be unrealistic to presume that he would, in making a testamentary disposition, like to benefit his illegitimate children as well.

There will still remain scope for the expression of a contrary intention by him. But, subject to this safeguard, it would be proper, as a matter of social justice, to reverse the present rule which was framed at a time when the notions of society on the subject under consideration were much more rigid than they are now. Section 100 should be revised and new section 100A should be inserted for the purpose, as recommended in the Report.1

1. Paras. 16.72 to 16.76.

(71) In regard to section 105, illustration (vi), dealing with the situation of "commorients" (deaths of two or more persons in a common disaster), attention is drawn to the Law Commission's recommendation in its Report on the Evidence Act.1

If the will does not, in any manner, indicate an intention that the two persons are to take it jointly, the presumption should be in favour of a tenancy in common.

For this purpose, the law should be amended; and an Explanation to section 107 should be added somewhat in these terms:

"Explanation-If the will does not, in any way indicate an intention that the legacy is given to two persons jointly, it shall be presumed that the testator intended to give them distinct shares of it."2

1. Para. 16.92 et seq.

2. Para. 16.104.

(72) Section 113 should either be deleted, or amended as recommended in the Report1

1. Paras. 17.7 and 17.8.

(73) Section 114 should be revised as recommended in the Report.1

1. Para. 17.10, et. seq.

(74) In section 118, the changes of substance and drafting, as recommended in the Report, should be carried out.1

In brief, the amendments recommended in section 118 are:-

(a) removing the present provision for compulsory deposit of the will, in cases where the section applies;

(b) removing the present provision that there should be the prescribed minimum interval between execution of the will and death of the testator:

(c) substituting a requirement that (in the case of a will governed by the section), one of the near relatives of the testator must be an attesting witness;

(d) defining the expression "near relative", as meaning a nephew or a niece or nearest relative; and

(e) inserting, in the section, an Explanation on the following lines:

"Explanation-The spouse of a person shall be deemed to be the nearest relative of that person for the purposes of this section."

1. Paras. 17.11 and 17.19.

(75) New section 118A should be inserted in the Act as follows:-

"118A. The restrictions contained in sections 114, 116, and 117 shall not apply in the case of a bequest for the benefit of the public, for the relief of poverty or the advancement of religion, education, commerce, health, safety or any other object beneficial to mankind."1

1. Para. 17.23.

(76) In section 120, Exception, a proviso should be inserted at the end, to make it clear that the Exception does not affect the provisions of section 121.1

1. Para. 18.5.

(77) Section 124 should be brought in line with the present English law. It is recommended that the following proviso should be added to section 124, for the purpose.

"Provided that:

(a) where the event so specified is the death of any person without issue or unmarried or before a particular age or accompanied by any other specified circumstance, and

(b) that person is the holder of a prior bequest contained in the will, then, unless the will indicates an intention to the contrary, the legacy shall take effect whether the death happens before or after the period when the prior bequest takes effect."1

1. Para. 20.16.

(78) The fourth illustration to section 124 should also be revised in conformity with the above recommendation. The object could be achieved by reframing the last eleven words of the illustration, as under1:-

"in case B dies without children during or after the lifetime of A".

The second illustration to section 124 should also be revised, as recommended in the Report.2

1. Para. 20.16.

2. Para. 20.7.

(79) Under section 127, a bequest upon a condition, the fulfilment of which would be contrary to law or to morality, is void. This section should be amended by adding the words "or to public policy" after the words "or morality."1

1. Para. 21.7.

(80) Section 136 should be revised as recommended in the Report, the object being to provide that where the testator has not prescribed a particular time limit for the performance of a condition attached to a bequest, the donee should have his (donee's) entire lifetime for performing the condition.1

1. Para. 21.16.

(81) Section 137 should be amended by adding, after the word "fraud", the words "of a person who would be directly benefitted by non-performance of the condi tion."1

1. Para. 21.20.