“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-IV]

Ans. No. With the above nomination the Junior Head attained a “status” in presenti and the Senior Head cannot deal with his nomination as if it is a Will. (Vide Sri. Mahalinga Thambiran Swamigal v. His Holiness Sri. La Kasivasi Arulnandi Thambiran Swamigal (1974) 1 SCC 150 = AIR 1974 SC 199 – 3 Judges – K. K. Mathew – J).

This has nothing to do with the position of a “nominee” under the insurance and other laws. There the nominee can only collect the amount as authorised by the principal. In the hands of the nominee the proceeds so collected is subject to the rights of the legal heirs of the deceased. (Vide Sarojini Amma v. Neelakanta Pillai 1960 KLT 1319 = AIR 1961 Ker. 126 (FB); Sarbati Devi v. Usha Devi (1984) 1 SCC 424 = AIR 1984 SC 346).

Q. 17 What is the legal effect of a Will during the lifetime and after the death of the testator ?

Ans. Every testament is consummated by the death of the testator. Until the testator dies the will of the testator is “ambulatory” (that which is capable of being altered or changed or revised). Hence, a will is revocable only until the testator’s death. (Vide per Lord Penzance in Limage v. Goodban (1865) LR 1 P & D 57 = 35 L J P & M 28 = 13 LT 508 cited by Fry – J in Green v. Tribe (1878) 9 Ch D 231 = 38 LT 914; para 10 of Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321 = AIR 2004 SC 1772 = 2004 (2) KLT 75 – Doraiswamy Raju, Arijit Pasayat - JJ). A will being an ambulatory document operative only upon the property which exists at the time of the testator’s death. (Vide para 19 of Sridevi Amma @ Malathi v. Venkitaparasurama Ayyan AIR 1960 Kerala 1 = 1959 KLT 528 (FB) – K. T. Koshi – CJI, M. S. Menon, N. Varadaraja Iyengar – JJ.).

A will is thus the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos (i.e. between living persons). The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is ambulatory i.e. revocable at any time during the lifetime of the testator. It is said that so long as the testator is alive a will is not worth the paper on which it is written, as the testator can at any time revoke it. So, the mere fact that the testator during his life time alienated part of the property covered by the Will, cannot be regarded as an act of revoking the Will, nor does it in any manner affect the properties which are available for inheritance at the time of death of the testator.