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Report No. 110

II. Scheme of Sections 59-62

12.4. Scheme.-

The scheme of sections 59-62 is simple. Section 59 deals with the persons who are capable of making wills. In general, testamental)/ capacity requires a sound mind and attainment of the age of majority1. The age of majority is not, however, expressly mentioned in section 592.

Marriage is no disqualification as regards testamentary capacity.3 Physical incapacity as such is also not regarded as an incapacity for making a will, if the persons concerned are able to know what they do by it".4 Here the test is one of ability to know, and not actual knowledge, in contrast with the provision relating to "state of mind". Even an insane person can make a will during an interval in which he is of sound mind.5 These propositions are laid down in three Explanations to section 59.

But a person in a "state of mind" in which he does not know what he is doing cannot make a will. And this is so irrespective of the cause that has led to such a state a mind.6 Here the test is of actual knowledge. By and large, this requirement corresponds to the English notion of a "sound disposing state of mind".

1. Section 59, main paragraph.

2. Contrast section 65.

3. Section 59, Explanation I.

4. Section 59, Explanation II; Contrast section 59, Explanation IV.

5. Section 59, Explanation III.

6. Section 59, Explanation IV.

12.5. Other functions of a testamentary document.-

Though the principal object of a will is the disposition of property (section 59), there are certain other incidental functions of a testamentary document. Thus, section 60 provides1 that a father, whatever his age may be, may by will appoint a (testamentary) guardian for his minor children.

It is elementary that a will must be the result of the free exercise of the will of its maker.

Certain factors adversely affecting the freedom of will in this context are dealt with in a separate section2.

Finally, it is provided that a will is liable to be revoked or altered by the maker at any time when he is competent to dispose of his property by will.3 This brings out the ambulatory character of a will.

The sections in the group, taken together, thus codify the position in respect of certain aspects connected with wills, namely, the will as a dispositive document taking effect on death (and only on death), the ambulatory character of a will, and the will as a voluntary and revocable instrument.

1. Section 60.

2. Section 61.

3. Section 62.

12.6. Analysis of the sections.-

It may be stated that three sections (69-61) are concerned with capacity to make a will, including in particular, the relevance or irrelevance of certain factors connected with the condition or status of the testator, such as-

(a) sound mind1,

(b) age2,

(c) physical incapacity3,

(d) married status (in the case of a women4, and

(e) free will5.

One section (section 62) deals with the revocable character of a testamentary disposition.

We may now take up the provisions, section by section.

1. Section 59, main paragraph and Explanations 3 and 4.

2. Section 59, main paragraph as qualified by section 60.

3. Section 59, Explanation 2.

4. Section 59, Explanation 1.

5. Section 61.

12.7. Section 59-Capacity to dispose of property by will.- Section 59 reads as follows:-

"59. Every person of sound mind not being a minor may dispose of his property by will.

Explanation 1.-A married woman may dispose of by will any property which she could alienate by her own act during her life.

Explanation 2.-Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.

Explanation 3.-A person who is ordinarily insane may make a will during an interval in which he is of sound mind.

Explanation 4.-No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing."

12.8. English provision.-

The English statutory provision1 on the subject enacts that "it shall be lawful for every person to devise, bequeath or dispose of by his will all real estate and all personal estate which he shall be entitled to at the time of his death". The legal requirements of sound mind and majority are not expressly mentioned in the English section, but are left to be governed by the common law. In contrast, section 59 of the Succession Act, as already mentioned in the above analysis,2 makes elaborate provisions spelling out this concept, in various Explanations added to the section.

1. Section 3, Wills Act, 1937.

2. Para. 12.4, supra.

12.9. Minimum age in England before 1837.-

In England, prior to the Wills Act, 1837, a person could dispose of leaseholds or other personal property-

(a) at the age of 14 years, if a male, or

(b) at the age of twelve, if a female.

But a person could not devise freeholds before the age of 21 years.

An infant cannot make an irrevocable disposition of interest in real property.1

In 1837, the British Parliament fixed a uniform age-21 years-as the minimum age for wills of all property2. There was made an exception for soldiers in actual military service or mariners or seamen at sea.

The age of 21 years fixed in 1837 for the general community was reduced to 183 in 1969 in England.

1. Cheshire Modern Law of Real Property, (1976), p. 920, citing Coke and Littleton.

2. Sections 3 and 7, Wills Act, 1837.

3. The Family Law Reform Act, 1969, (Eng.).

12.10. Mental capacity.-

The requirement of mental capacity-soundness of mind-is one common to wills and non-testamentary dispositions. The earlier theory was that such a person has no will or no "mind". But later it was recognised1 that the only legitimate and rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property.2

Initially it was described as a requirement of 'sound mind, memory and understanding'. As has been observed,3 the phrase 'sound mind' covers the whole subject-there must be memory to recall the persons supposed to become fitting objects of testamentary bounty. And there must be understanding by the testator to comprehend their relations to himself (the testator) and their claims upon him.

1. Banks v. Goodfellow, 1870 LR 5 QB 549: 1861-1873 All ER Rep 47.

2. Banks v. Goodfellow, 1870 LR 5 QB 549: 1861-1873 All ER Rep 47.

3. Boughten v. Knight, LR 3 P&D 64: (1861-1873) All ER Rep 40 (41).

12.11. Section 59-amendment regarding property that can be disposed of by will.-

Reverting to section 59, the first point to be noticed in regard to the section concerns the main paragraph, which provides that a person may dispose of "his" property. There is, at present, no provision in the Act specifically providing that a person can (by will) dispose of property over which he has a disposing power though it is not "his" property. It is desirable that some provision covering property over which there is a disposing power exercisable by will should be contained in the Indian Succession Act1.

Such a provision would be useful, for example, in regard to the interest of a Hindu in coparcenary property, which is now disposable by will2. It may not be quite correct to say that such an interest is "his" property during his lifetime, and it may, therefore, fall outside section 59. To achieve the object mentioned above, we recommend an amendment revising the first paragraph of section 59 so as to read as under:-

"Every person of sound mind, not being a minor, may, by will, dispose of his property or any property over which he has disposing power which he can exercise by will".

1. Compare section 7, Transfer of Property Act, 1882.

2. Section 30, Hindu Succession Act, 1956.

12.12. Recommendation to amend section 59 in regard to reaction or alteration of appointment of a guardian.-

We may now refer to another point arising out of section 59. This concerns the test enacted by the words 'competent to dispose of his property by will'. The phraseology is, in one respect, inaccurate. Competence to dispose of property is governed by section 59, under which every person of sound mind not being a minor may dispose of his property by will. Disposition of property thus requires majority. But under section 60, the appointment of a guardian by will is permissible to a father, 'whatever his age may be'.

It stands to reason that if a person can appoint a testamentary guardian at any age, he should also be competent to revoke or alter the appointment, whatever his age may be. We, therefore, recommend that the following proviso should be added to section 59:-

"Provided that any person, whatever his age may be, may, by will, revoke or alter any will appointing a guardian or guardians for his child during minority."

12.13. Explanation.-

Explanation 1 to section 59 is not intended to affect the general requirements laid down in the body of the section, namely, (i) full age (majority), and (ii) sound mind1. One would have thought that this is clear enough. However, in a Calcutta case2 (decided under the earlier Act), an attempt was made to persuade the court to read the Explanation apart from the section, i.e., to regard the Explanation as a self-contained provision dispensing with the requirement of full age (majority). The attempt failed.

1. Caroline Miranda (in re:), AIR 1924 Cal 644 (Buckland, J.).

2. Caroline Miranda (in re:), AIR 1924 Cal 644.

12.14. Recommendation to amend section 59, Explanation I.-

In order to put the position beyond doubt, we recommend that the first Explanation to section 59, should be revised as follows:-

"Explanation 1.-A married woman, if otherwise, competent to make a will, may by will dispose of any property which she could alienate by her own act during her life."

12.15. Section 59, Explanation II.-

Explanation II to section 59 provides that persons who are deaf, dumb or blind are not to be incapacitated from making a will, if they are able to know what they do by it. One commentator,1 emphasising the use of the conjunction "or", has stated that the Explanation omits the case of a person who is deaf and dumb and blind. We do not, however, share this doubt. Such a person falls in each category. As the language of the section is clear enough, no change is needed.

1. Paruck Succession Act, Commentary on Section 59.

The Indian Succession Act, 1925 Back

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