Will - Principles while undertaking the construction of a will

Will

Will - Principles that should be borne in mind while undertaking the construction of a will

Will - Principles that should be borne in mind while undertaking the construction of a will - At its very core, the exercise involves an endeavour to try and find out the intention of the testator - This intention has to be gathered primarily from the language of the will, reading the entire document as a whole, without indulging in any conjecture or speculation as to what the testator would have done had he been better informed or better advised - In construing the language of a will, the Courts may look to the nature and the grammatical meaning of the words used, and also consider surrounding circumstances such as the position of the testator, his family relationship, and other factors that may surface once the Court puts itself in the position of a person making the will. Shyamal Kanti Guha (dead) through LRs v. Meena Bose, (2008) 8 SCC 115, relied. #2020 SCeJ 163

Will - use of non­mandatory words

Will - The assertive language used in favour of N is a clear indication of the creation of an absolute bequest in her favour, while the use of non­mandatory words such as ‘desire’ indicate that the testator did not wish to compel his wife to sell the suit property. He merely desired that his wife should endeavour to sell the property during her lifetime and divide the sale proceeds as she chose. #2020 SCeJ 163

Will - Rules of interpretation of the “Will” - Are different from the rules which govern the interpretation of other documents

Will - Rules of interpretation of the “Will” - Are different from the rules which govern the interpretation of other documents say, for example, a Sale Deed or a Gift Deed or a Mortgage Deed or, for that matter, any other instrument by which interest in immovable property is created - While in these documents if there is any inconsistency between the earlier or the subsequent part or specific clauses inter-se contained therein, the earlier part will prevail over the latter as against the rule of interpretation applicable to a Will under which the subsequent part, clause or portion prevails over the earlier part on the principle that in the matter of “Will”, the testator can always change his mind and create another interest in place of the bequest already made in the earlier part or on an earlier occasion. Undoubtedly, it is the last Will which prevails. Succession Act, 1925, Section 88. 1995 SceJ 001 followed in #2020 SCeJ 163