Construction of will | Family Law - CLAT PG PDF Download

Wording of Will

The wording in a will does not need to include technical terms or legal jargon. What’s important is that the wording clearly reflects the intentions of the person making the will (the testator).

Inquiries to Determine Object or Subject of Will

When there are questions about what person or property is referred to in a will, the court will investigate all relevant facts about the people claiming interest under the will, the property in question, and the circumstances of the testator and their family.

Illustrations

• (i) A bequeaths 1,000 rupees to his eldest son, youngest grandchild, or cousin Mary. The court may need to determine to whom the description applies.
• (ii) A leaves "my estate called Black Acre" to B. Evidence may be needed to identify the subject of the bequest.
• (iii) A leaves "the estate which I purchased of C" to B. Evidence may be required to determine what estate was purchased from C.

Misnomer or Mis-description of Object

When the words used in a will to identify or describe a legatee or a group of legatees clearly indicate the intended recipients, an error in their name or description will not hinder the legacy from being effective.

Correction of Mistakes in Names or Descriptions

• A mistake in the name of a legatee can be rectified by a description of the legatee, and vice versa.

Illustrations

• (i) If a testator bequeaths a legacy to "Thomas, the second son of my brother John," and the testator's only brother John has no son named Thomas but has a second son named William, William will receive the legacy.
• (iii) If a testator bequeaths property "to A and B, the legitimate children of C," and C has no legitimate children but has two illegitimate children, A and B, the bequest to A and B will still be valid, regardless of their illegitimacy.

Understanding Wills and Legacies

When Missing Words Can Be Added

• If a word is left out but is necessary for the full meaning, it can be added based on the context.
• Illustration: When a testator leaves a legacy of "five hundred" to daughter A and "five hundred rupees" to daughter B, daughter A will receive five hundred rupees.

Ignoring Incorrect Details in Descriptions

• If the item the testator intended to bequeath can be clearly identified despite some incorrect details in the description, those incorrect parts can be ignored.
• Illustration: If a testator bequeaths "my marsh-lands lying in L and in the occupation of X" but only has marsh-lands in L and none in the occupation of X, the words "in the occupation of X" will be ignored, and the marsh-lands in L will be passed on.

When Part of Description May Not Be Rejected as Erroneous

• If a will includes multiple circumstances describing the property the testator intends to bequeath, and there is any property of the testator that matches all those circumstances, the bequest is limited to that specific property. In such cases, it is not permissible to reject any part of the description as erroneous, even if the testator has other property to which that part of the description does not apply.

Illustration

• D(i) A testator bequeaths to B "my marsh-lands lying in L and in the occupation of X." The testator owns marsh-lands in L, some of which are occupied by X and some are not. The bequest is limited to the testator's marsh-lands in L that are occupied by X.

Extrinsic Evidence Admissible in Cases of Patent Ambiguity

• When the language of a will is clear, but extrinsic evidence reveals that the words allow for multiple applications, one of which must have been the testator's intention, extrinsic evidence can be used to determine which application was meant.

Illustration

• D(i) For example, if a man has two cousins named Mary and he bequeaths money to "my cousin Mary," the description in the will allows for two interpretations. Evidence can be presented to clarify which Mary was intended by the testator.

Extrinsic Evidence Inadmissible in Case of Patent Ambiguity or Deficiency

• When there is an ambiguity or deficiency evident in a will, extrinsic evidence regarding the testator's intentions cannot be accepted.

Illustration

• D(i) For instance, if a man has an aunt named Caroline and a cousin named Mary, and he bequeaths money to "my aunt, Caroline" and "my cousin, Mary," but later refers to "my before-mentioned aunt, Mary," there is no individual who fits the description. In such cases, evidence cannot clarify who was meant by "my before-mentioned aunt, Mary," leading to the bequest being void due to uncertainty under section 89.

D82. Meaning of Clause to be Collected from Entire Will

Key Principle: The meaning of any clause in a will should be derived by considering the entire document, with all parts being interpreted in relation to each other.

Illustrations

D(i) If a testator bequeaths a specific fund or property to B upon the death of A, and later in the will bequeaths the entirety of his property to A, the combined effect of these clauses would mean that A receives the specific fund or property for life, with ownership passing to B after A's death. This indicates that the testator intended to use certain terms in a more limited sense when describing what he gives to A.

D83. Understanding Words in a Will

Key Principle: Words in a will can be interpreted in either a restricted or wider sense based on the testator's intent as gathered from the overall context of the will.

When to Understand Words in a Restricted Sense

• Words may be interpreted in a restricted sense if it is clear from the will that the testator intended them to have a limited meaning.

When to Understand Words in a Wider Sense

• Words may be understood in a broader sense than their usual meaning if the context of the will suggests that the testator intended them to be interpreted more broadly.

Illustrations

D(ii) In a scenario where a testator, who is a sailor, bequeaths specific items to his mother and his friend A, the share of the testator in a house does not pass to A under the bequest. This illustrates the principle of restricted interpretation.

D(iii) If A bequeaths all household items to B, including furniture, plate, linen, china, books, pictures, and other goods, and later specifies a part of his property for B, under the first bequest, B is entitled only to items of the same nature as those listed. This demonstrates the principle of restricted interpretation based on the nature of the items enumerated.

Principles of Will Interpretation

Preference for Meaningful Clauses

• When a clause can be interpreted in two ways, one with effect and the other without, the interpretation with effect is preferred.

Presumption of Meaning in Wills

• No part of a will should be deemed meaningless if a reasonable interpretation can be applied.

Consistency in Word Usage

• When the same words appear in different sections of a will, they are assumed to have the same meaning throughout, unless stated otherwise.

Testator's Intent

• The testator's intention should be honored as much as possible, even if it cannot be fully realized.
• Example: If a testator leaves property to a person for life and then to a hospital, but the gift to the hospital is invalid, the gift to the person for life is still valid.

Resolving Conflicting Clauses

• When two clauses in a will conflict, the last one takes precedence.
• Examples:
  • If a testator first leaves property to A and later says it goes to B, B gets the property.
  • If a will initially gives a house to A but later states it should be sold for B's benefit, the latter instruction prevails.

Void Bequests Due to Uncertainty

• A will or bequest is invalid if it lacks a clear intention.
• Example: If a testator says "I leave goods to A" without specifying, or if a schedule mentioned is missing, the bequest is void.

Description of Property in Wills

• Property described in a will refers to the actual property matching that description at the time of the testator's death, unless the will specifies otherwise.

D91. Power of Appointment Executed by General Bequest

• Unless the will indicates otherwise, a bequest of the testator's estate is interpreted to include any property the testator has the power to appoint by will to any person or purpose. This bequest operates as an execution of that power.

D92. Implied Gift to Objects of Power in Default of Appointment

• When property is bequeathed to specific individuals or for the benefit of certain objects in proportions that a specified person can determine, and the will does not address the scenario of no appointment being made, if the specified power is not exercised, the property is divided equally among all the objects of the power.

Illustration: For example, if a person bequeaths a fund to their spouse for life and specifies that after the spouse's death, the fund should be divided among the children in proportions determined by the spouse, if the spouse dies without making any such appointment, the fund will be divided equally among the children.

D93. Bequest to "Heirs," etc., of Particular Person Without Qualifying Terms

• When a bequest is made to the "heirs," "right heirs," "relations," "nearest relations," "family," "kindred," "nearest of kin," or "next-of-kin" of a particular person without any qualifying terms, and the designated class forms the direct and independent object of the bequest, the property bequeathed is distributed as if it had belonged to the specified person who died intestate regarding that property, leaving assets to cover debts independently of the bequeathed property.

Illustrations:

• D(i): A leaves property "to my own nearest relations." The property goes to those entitled to it if A had died intestate, leaving assets for debts independent of the property.
• D(ii): A bequeaths 10,000 rupees "to B for his life, and after B's death, to my own right heirs." The legacy after B's death belongs to those entitled to it as if it were part of A's unbequeathed property.

Bequest to "representatives," etc., of particular person.

• When a bequest is made to the "representatives," "legal representatives," "personal representatives," "executors," or "administrators" of a specific person, and this class forms the direct and independent object of the bequest, the property shall be distributed as if it belonged to that person who died intestate (without a will) regarding that property.
• Illustration: If a bequest is made to the "legal representatives" of person A, and A has died intestate and insolvent, then B, as A's administrator, is entitled to receive the legacy. B will first use the legacy to pay off A's unpaid debts. If there is any surplus, B will distribute it to those persons who would have been entitled to A's remaining property after debt payment at the time of A's death, or to the representatives of such persons.

Bequest without words of limitation.

• When property is bequeathed to a person without any words of limitation, that person is entitled to the entire interest of the testator in the property, unless the will clearly indicates that only a restricted interest was intended for that person.

Bequest in alternative.

• When a property is bequeathed to a person with an alternative bequest to another person or a class of persons, the first named legatee is entitled to the legacy if they are alive at the time it takes effect. If the first legatee is deceased, the alternative person or class of persons named will receive the legacy.
• Illustrations:
• D(i) A bequest is made to A or to B. If A survives the testator, A takes the legacy. If A is deceased, B takes nothing.
• D(ii) A bequest is made to A or to B. If A dies after the will is made but before the testator, the legacy goes to B.

Effect of words describing a class added to bequest to person.

• When property is bequeathed to a person with additional words describing a class of persons, but these words do not indicate a distinct and independent gift, the person is entitled to the entire interest of the testator in the property. This is unless the will specifies a contrary intention.
• Illustrations:
• D(i) A bequest is made to A and his children, to A and his children by his present wife, or to A and his heirs. In each case, A receives the whole interest in the property.
• D(ii) A bequest is made to A and his brothers. A and his brothers are jointly entitled to the legacy.

Bequest to Class of Persons Under General Description Only

• When a bequest is made to a class of persons using a general description, only those individuals to whom the description applies in its ordinary sense are entitled to take the legacy.

Construction of Terms in a Will

• Children: The term "children" refers only to the first-degree lineal descendants of the person mentioned in the will.
• Grandchildren: The term "grandchildren" applies solely to the second-degree lineal descendants of the person referred to as "grandchildren" in the will.
• Nephews and Nieces: The words "nephews" and "nieces" are limited to the children of the testator's brothers or sisters.

Words Expressing Relationship Denote Only Legitimate Relatives

• In the absence of any contrary indication in a will, terms like "child," "son," "daughter," or any word expressing relationship, are understood to refer only to legitimate relatives.
• If there are no legitimate relatives, the term may refer to a person who has the reputation of being a legitimate relative at the date of the will.

Illustrations

• Example D(i): If a person (A) has three children—B, C, and D, where B and C are legitimate and D is illegitimate—and A leaves property to be equally divided among "my children," then B and C will inherit the property in equal shares, excluding D.

Rules of Construction Regarding Bequests in a Will

When a will appears to make two bequests to the same person, and there is uncertainty about whether the testator intended the second bequest to replace or add to the first, the following rules apply to determine the interpretation of the will:

Explanation

In clauses (a) to (d) of this section, the term "will" does not encompass a codicil.

Illustrations

D(ii) A, possessing a single diamond ring given to him by B, bequeaths to C the diamond ring given by B. Later, A amends his will through a codicil, bequeathing to C the diamond ring given to him by B after other legacies. C can only claim the diamond ring given to A by B.

Constitution of Residuary Legatee

• A residuary legatee can be established using any wording that indicates the testator's intention for the designated person to receive the surplus or residue of their property.

Illustration

• A creates her will, comprising multiple testamentary documents. In one of these, she includes the following statement: "I believe there will be something left, after all funeral expenses, etc., to give to B, now at school, towards equipping him for any profession he may later pursue." In this case, B is designated as the residuary legatee.

Property Entitled to Residuary Legatee

• Under a residuary bequest, the legatee is entitled to all property belonging to the testator at the time of death, of which no other testamentary disposition has been made that can take effect.

Illustration

• A bequeaths certain legacies in his will, one of which is void under section 118, and another lapses due to the death of the legatee. He bequeaths the residue of his property to B. After making the will, A purchases a zamindari, which belongs to him at the time of his death. In this scenario, B is entitled to the two legacies and the zamindari as part of the residue.

Time of Vesting Legacy in General Terms

• If a legacy is given in general terms without specifying the time of payment, the legatee has a vested interest from the date of the testator's death. If the legatee dies before receiving it, the legacy will pass to their representatives.

Cases of Legacy Lapsing

• If the legatee does not outlive the testator, the legacy fails and becomes part of the testator's residue, unless the will indicates an intention for it to go to someone else.
• To enable the legatee's representatives to receive the legacy, it must be proven that the legatee survived the testator.

Illustration

• If the testator bequeaths "500 rupees which I owe to B" and B dies before the testator, the legacy lapses.

Legacy Does Not Lapse If One of Two Joint Legatees Dies Before Testator

• If a legacy is granted to two individuals jointly and one of them passes away before the testator, the surviving legatee inherits the entire legacy.

Illustration

• If the legacy is simply to A and B, and A dies before the testator, B is entitled to the entire legacy.

Impact of Testator's Intent to Give Distinct Shares

• If a legacy is bequeathed to legatees in a manner indicating the testator's intention to allocate distinct shares, and any legatee predeceases the testator, the portion of the legacy intended for the deceased legatee will be absorbed into the testator's residue.

Illustration

• When a sum of money is bequeathed to A, B, and C for equal division among them, and A dies before the testator, B and C will only receive the amount they would have been entitled to if A had survived the testator.

When a Lapsed Share Becomes Undisposed Of

• When a share lapses and is part of the general residue bequeathed by the will, that share will be treated as undisposed of.

Illustration

• If the testator bequeaths the residue of his estate to A, B, and C for equal division, and A dies before the testator, A's one-third share of the residue will be considered undisposed of.

When Bequest to Testator's Child or Lineal Descendant Does Not Lapse on His Death

• If a bequest is made to a child or lineal descendant of the testator, and the legatee passes away during the testator's lifetime, but any lineal descendant of the legatee survives the testator, the bequest will not lapse. Instead, it will take effect as if the legatee had died immediately after the testator, unless the will specifies otherwise.

Illustration

• If A bequeaths a sum of money to his son B in his will, and B dies before A but leaves a surviving son C, the money will go to C, regardless of B's will.

Bequest to A for Benefit of B Does Not Lapse by A's Death

• When a bequest is made to one person for the benefit of another, the legacy does not lapse if the person to whom the bequest is made dies during the testator's lifetime.

Survivorship in Case of Bequest to Described Class

• When a bequest is made to a described class of persons, the bequeathed item will only go to those who are alive at the time of the testator's death.

Illustration

• If A bequeaths 1,000 rupees to "the children of B" without specifying when it should be distributed among them, and B had died before the will was made, leaving three children (C, D, and E), the legacy will belong to C and D if E dies after the will but before A's death. The representatives of E will be excluded from the legacy.