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Report No. 110

IV. Persons Mentally Incompetent

12.16. Need for provision as to person mentally incompetent.-

At this stage, we may mention one matter on which an amendment appears to be needed. At present, there is no provision in the Succession Act whereby the property of a person who is mentally incompetent can be disposed of by a will to be made by the court or any other authority. Now, a situation can possibly arise rendering the existence of such a power desirable. For example, a person of charitable disposition becomes mentally incompetent and has no near relatives. In the absence of a will, his estate goes either (by intestacy) to a very distant relative, or (by escheat) to the State.

It would be convenient if a part of the estate could be given to charity. There may also arise cases where justice requires that an earlier will made by a person who subsequently has become mentally incompetent should be modified or revoked1, or a new executor appointed. The testator, in view of his mental incapacity, cannot do it now. There should, then, be some authority vested with such a power. In such cases, social injustice may result by virtue of the present position. The matter does not seem to be specifically covered by the law relating to lunacy2.

1. Cf. H.M.F. (in re:), (1975) 2 All ER 795.

2. Indian Lunacy Act, 1912.

12.17. Power of the judge in England.-

In this context, it may be noted that in England, a judge has power1 to make certain orders or to give certain directions for the disposal of property of mentally incompetent persons and to execute a "statutory will" in regard to persons who are mentally incompetent2-3, if the judge has reason to believe that the patient does not have testamentary capacity4.

The relevant provision is contained in section 103(1), Mental Health Act, 1959 (inserted by section 17(i)(dd) of the Administration of Justice Act, 1969), relating to statutory wills. Amongst the powers of the judge as to the patients' property and affairs, the following is now mentioned in section 103(1):-

"(dd) the execution5, for the patient, of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by the patient if he were not mentally disordered, so, however, that, in such cases as a nominated judge may direct, the powers conferred by this paragraph shall not be exercisable except by the Lord Chancellor or a nominated judge6;"

1. See para. 1.10, supra.

2. Sections 103 and 103A, Mental Health Act, 1959 (Eng.).

3. Sections 17(1) and (2), Administration of Justice Act, 1969 (Eng.).

4. See H.M.F. (in re:), 1976 Ch 33: (1975) 2 All ER 795.

5. Commas added to facilitate understanding.

6. This means the Judge of the Chancery Division.

12.18. Section 103(3) of the Mental Health Act, 1959, (as amended in 1969) further provides:-

"any power of the judge to make or give an order, direction or authority for the execution of a will for a patient-

(a) shall not be exercisable at any time when the patient is an infant, and

(b) shall not be exercised unless the judge has reason to believe that the patient is incapable of making a valid will for himself".

In a fairly recent English case1, this section (section 103, Mental Health Act, 1959) was applied and, on the facts of the case, the Court chose to give notice to legatees under the earlier will. The facts of the case also illustrate how there may arise a need for a court to modify a will, if a person who has made certain testamentary dispositions2 shows later (after becoming mentally incompetent), an interest in the surviving members of the family.

1. H.M.F. (in re:) (Mental Patient Wills), (1975) 2 All ER 795 (799) (Coulding, J.).

2. Charities in this case.

12.19. Recommendation to amend the law.-

We are of the view that it is desirable to insert a new section on the subject. As to the placing of the proposed new section, there are two alternatives. It could be placed in the Succession Act (for which we are giving a draft below)1, or, in the alternative, the appropriate amendment may be made by adding a section in the Indian Lunacy Act, 1912 in the Chapter2 of that Act dealing with the management of the person and property of lunatics.

1. See infra, (Para. 12.20).

2. To be considered under the Indian Lunacy Act, 1912 (Para. 12.22).

12.20. Recommended section 59A (Succession Act).-

If the amendment is to be made in the Succession Act, we recommend that new section 59A may be inserted in that Act on the following lines:

"59A. (1) The court exercising jurisdiction under the Indian Lunacy Act, 1912 in relation to the property of a lunatic shall have power to make an order, direction or authority for the execution, for the lunatic, of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by the lunatic if he were a person of sound mind.

(2) An order, direction or authority for the execution of a will for a lunatic-

(a) shall not be exercisable at any time when the lunatic is a miner, and

(b) shall not be exercised unless the judge has reason to believe that the lunatic is incapable of making a valid will for himself

(3) A will executed in accordance with such order, direction or authority shall have the same effect as a will made by the lunatic if he were a person of sound mind.

(4) Any such order, direction or authority may be revoked or modified by the court referred to in sub-section (1), which may also issue an order for revoking or modifying a will already made by the lunatic or a will made under this section for the lunatic."

12.21. Lunacy Act.-

The scheme of the Indian Lunacy Act, as it stands at present, is that one set of provisions deals with the jurisdiction of the High Court in the Presidency Towns, while another set deals with the jurisdiction of the District Court outside the Presidency Town. If that Act is to be amended for the purpose discussed above1, two sections-say, section 49A and section 71A-would have to be inserted in that Act to deal with these two areas respectively. The expression to be used would be "the court" in relation to other areas, having regard to the phraseology already used in the Lunacy Act.

1. Para. 12.19, supra.

12.22. Recommended section 49A (Lunacy Act)-Alternative recommendation.-

If, therefore, the amendment is to be made in the Indian Lunacy Act, 1922, we recommend that a new section may be inserted in that Act on the following lines:

"49A. (1) The court shall have power to make an order, direction or authority for the execution, for the lunatic, of a will making any provision (whether by way of disposing of property or exercising a power or otherwise) which could be made by a will executed by the lunatic if he were a person of sound mind1.

(2) An order, direction or authority for the execution of a will for a lunatic-

(a) shall not be exercisable at any time when the lunatic is a minor, and

(b) shall not be exercised unless the judge has reason to believe that the lunatic is incapable of making a valid will for himself.

(3) A will executed in accordance with such order, direction or authority shall have the same effect as a will made by the lunatic if he were a person of sound mind.

(4) Any such order, direction, or authority may be revoked or modified by the court referred to in sub-section (1), which may also issue an order for revoking or modifying a will already made by the lunatic or a will made for the lunatic under this section."

1. Similar provision with appropriate adaptations to be made in regard to the District Court as section 71A.



The Indian Succession Act, 1925 Back




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