A. SOME GENERAL PRINCIPLES REGARDING “WILLS”

Q.1 What is the meaning of “Will”, as generally understood ?

Ans. A “will” is usually referred to in combination with a “testament” or a “testamentum” to be known as a “Will and Testament”. It is an instrument made in contemplation of death. A “will” is a testamentary disposition of a person’s “real property” (land and other immovable property) and a “testament” is an instrument for disposal of his “personal property” (movable or intangible property). The person who executes the Will is called the “testator”. Will includes a codicil and every writing making a voluntary posthumous disposition of property.

The word “Will” is the translation of the Latin word “voluntas” which was the term used in the text of Roman Law to express the intention of a testator. (Vide para 10 of Uma Devi Nambiar v. T. C. Sidhan (2004) 2 SCC 321 = AIR 2004 SC 1772 – Doraiswamy Raju, Arijit Pasayat - JJ ).

Q.2 What is the “metaphysical” and “physical” connotation of the word “Will” ?

Ans. The word “Will” has two distinct meanings. The first is metaphysical and denotes the totality or aggregate of what the testator wishes or wills to happen on his death. It represents his desire and intention as to what should be the mode of posthumous disposition of his corporeal and incorporeal property, if any, which he may be owning at the time of his death. The second meaning is physical and it denotes the document or documents in which the aforesaid intention of the testator is expressed. In other words, the first is the wish of the testator and the second is the expression of such wish of the testator.

Q.3 What is the origin and historical meaning of the word “Will” ?

Ans. The expression “Will” is a translation of the Latin word “voluntas” which was a term used in the text of Roman law to express the intention of a testator. This abstract term has also come to mean the document in which the said intention is contained. A Latin maxim which is popular in this context reads “Testamentum est voluntatis nostrae justa sententia, de eo quod quis post mortem suam fieri velit” (A testament is the legal declaration of a man’s intentions which he wills to be performed after his death). The word “justa” in the above maxim implies that in order to be valid the testament must be one made in compliance with the forms of law. The “last will and testament” is understood to be the just sentence of one’s will touching what one would have done after his death.

Q.4 What is the legal definition of a “Will” ?

Ans. Section 2 (h) of the Indian Succession Act, 1925 defines a “Will” as follows:-

“Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.”

Q.5 What is a “codicil” and how is it defined ?

Ans. A codicil is an instrument in relation to the Will and explaining, altering, or adding to its dispositions. A codicil is deemed to be part of a Will. Under Section 62 of the Indian Succession Act, a Will can be altered by its maker at any time when the testator is competent to dispose of his property. Even an unregistered codicil in relation to a registered Will would have to be read as complementing the Will provided the codicil has been executed following the same rules of execution as are applicable to a Will to which it relate. (Vide Amara Venkata Subbaiah & Sons v. Shaik Hussain Bi 2008 (5) A.L.T. 341 – V V S Rao – J.)