Report No. 110
Wills and Codicils (Sections 59-62)
12.1. Scope and history.-
Wills and codicils, as a general subject, find place in sections 59 to 62. A brief history of the position in England as to testamentary dispositions may be helpful, as it throws interesting light on some of the concepts and expressions employed in Indian legislation also.
12.2. Association with religion.-
It was by steps that the fee simple in land became freely devisable by will in England. Bequests of personal property (including lease-holds) have had a longer history, though the true will did not become prevalent in England until the revival of Roman Law studies in the early Middle Ages. Thereafter, wills because general in classes of society, largely because of the encouragement given to them by the Church which wished to ensure that some part of the dead man's property should be distributed for the good of his sou1.1
1. Stephen Commentaries on the Laws of England, (1950), Vol. 1 , pp. 499, 500.
12.3. Role of the Church.-
No doubt, it was this association with religion and its consequence that the Church was an invariable beneficiary under every will that induced the common law, from the thirteenth century onwards,1 to leave all disputes concerning the validity of wills to the ecclesiastical courts and this jurisdiction led to the general rule that all wills must be produced before the tribunal of the Ordinary (generally, the Bishop of the Diocese) and receive the authentication of a grant of probate before they could be acted upon. The probate jurisdiction remained exclusively with ecclesiastical courts until it was transferred to the new court of Probate in 1857.
English law relating to formalities requisite for wills is partly statutory and partly non-statutory.2 Indian law on the subject is statutory, but the concepts and expressions, largely borrowed as they are from England, are reminiscent of the ecclesiastical practice that constituted the nucleus of the English rules on the subject.
1. Stephen Commentaries on the Laws of England, (1950), Vol. I, pp. 499, 500.
2. Para. 12.8, infra.