section 31 indian penal code

INDIAN PENAL CODE

Section 31: “A Will”

31: “A Will”::--The words “a will” denote any testamentary document.

COMMENTS

Will: Wish; desire; pleasure; inclination; choice; the faculty of conscious, and especially of deliberate action–State v. Schwab 109 Ohio St.532, 143 NE 29, 31.When a person expresses his “will” that a particular disposition be made of his property, his words are words of command–Temple v. Russell 251 Mass. 231, 146 NE 679, 680, 49 ALR 1 and the word “Will” as so used is mandatory, comprehensive, and dispositive in nature–Mastellar v. Atkinson 94 Kan 279, 146 P 367, 368, Ann. Cas. 1917B, 502

In the law of Wills, Will is the legal expression or declaration of a person’s mind or wishes as to the disposition of his property, to be performed or take effect after his death–Swinb. Wills, 2; Thomas v. House, 145 Va 742, 134, SE 673, 674; In re McCune’s Estate, 265 Pa 523, 109A. 156, 157; Krause v. Krause 113 Neb 22, 201 NW 670, 673A revocable instrument by which a person makes disposition of his property to take effect after his death–Howard’s ex’r v. Dempster, 246 Ky 153, 54 SW 2d 660, 661.Any instrument whereby a person, makes a disposition of his property to take effect after his death.–Todd v. William’s Dam’x Ky.778, 95 SW 2d 593, 596… A written instrument executed with the formalities of law, whereby a person makes a disposition of his property to take effect after his death–Tax Commission of Ohio v. Parker, 117 Ohio St. 215, 158 NE 89,90

To constitute “Will”, intention must appear that writer by document itself intended to make disposition of property effective only after death–In re Button’s Estate, 209 Cal. 325, 287 P.964, 967

A “Will” is not a sheet of paper, nor a number of sheets or pages, but consists of the words written thereon–In re Golden’s Will 165 Misc. 205, 300 NYS 737, 738.And the form of an instrument is of little consequence in determining whether it is a Will, but if it is executed with formalities required by statute, and if it is to operate only after death of maker, it is a “Will”–In re Fowle’s Estate, 292 Mich.500, 290 NW 883, 885

Under s. 3(64) of the General Clauses Act, Will shall include codicil and every writing making a voluntary posthumous disposition of property.

The essential characteristics of a Will is that it is a mere declaration of an intention so long as the testator is alive, a declaration that may be revoked or varied according to the variation in his intention; a disposition that requires the testator’s death for its consummation and is but ambulatory without fixed effect until the happening of that event.A first on the other hand, is a transfer of property that is voluntary, gratuitous and absolute conferring immediate right.– Nodachy v. Ramalakshman 1955 Ker LT 891.Where a document which is not altogether free from ambiguity, lays down rules for devolution of the testator’s properties after his death with no present disposition in favour of anybody and carries with it the necessary implication; the element of revocability, it is a Will within the meaning of the section.–Promode Kumar v. Sephalika AIR 1957 Cal. 631

Under s. 2(h) of the Indian Succession Act, 1925, `Will’ means a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death.