Testamentary succession occurs when a person dies and leaves a will. Their property will be distributed as they bequest in the will however legal rights will still have to be satisfied. According to section 2(h) of the Indian Succession act, 1925 A will is defined as the legal declaration of the intention of a testator with respect to his property, which (intention) he desires to be carried into effect after his death. The General Clauses Act, 1897, defines the term will to include “a codicil and every writing making a voluntary posthumous disposition of property”. The Indian Penal Code defines a will to denote any testamentary document. In this article we shall discuss capacity to make a will i.e., who can make a will?

Who can make a will?

The ability as well as the power to make a will must be present at the time of the execution of the will. Supervening incapacity does not invalidate an effective will, nor is the will by an incapable person validated by the supervening of capacity.

According to Section 59 of the Act, every person of sound mind not being a minor may dispose of his property by will.

Explanations:

1. A married woman may dispose by will of any property which she could alienate by her own act during her life.
2. Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.
3. A person who is ordinarily insane may make a will during interval in which he is of sound mind.
4. No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.

Illustrations:

1. A can perceive what is going on in his immediate neighbourhood, and can answer familiar questions, but has not a competent understanding as to the nature of his property, or the persons who are of kindred to him, or in whose favour it would be proper that he should make his will. A cannot make a valid will.
2. A executes an instrument purporting to be his will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid will.
3. A, being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property, makes a will. This is a valid will.

Capacity to Make Will:

All persons of sound mind, not being minor and who are not expressly prohibited by law may make a will. It shall be sufficient if the testator was able at the time of making the will to know that:  

1. The testator must understand that he is giving his property to one or more objects of his regard.
2. He must understand and recollect this extent of this property and
3. He must also understand the nature and extent of claims upon him both of those whom he is including in his will and those whom he is excluding from the will.

Capacity to Make a Will of Minor:

A minor is a person who has not completed the age of 18 years and is not capable of making wills. The Indian majority act of 1875 applies to all persons including Hindus and Muslims so far as the competency to make a will is concerned. A minor is incapable of disposing of his property by will.

Capacity to Make a Will of Insane Person:

Physical and mental fitness are very important factors which influence the rationality of the will making.  Section 12 of the Indian Contract Act, 1972 says that a person is said to be of sound mind, if at the time he makes a contract, he is capable of understanding it and of forming a rational judgement as to its effect upon his interests. A person who is usually of unsound mind, but occasionally of sound mind, may make a contract when he is of sound mind. A person who is usually of sound mind, but occasionally of unsound mind, may not make a contract when he is of unsound mind. 

Depending upon the facts, the validity is determined. If instructions are given in sound mind & its carried out in faithful manner, even if the testator doesn’t understand what he is doing after, it will be considered as a valid will.

In Perera v Perera (1918) case, the Court held that if a testator, while in a state of health, gives instructions for a will to a solicitor and it is prepared in accordance with those instructions, a very slight mental capacity for execution of the will would be sufficient.

In Nabagopal Sarkar Bahadur v. Mrs. Sarala Bala Mitter, AIR 1933 Cal 574 case, the Court held that the burden of establishing the testamentary capacity of the testator is on the propounder to prove that the testatrix was of sound mind at the date of execution and that she knew and proves the contents thereof. Where the question is as to the insanity of the testatrix, and that is well founded, the burden of proving insanity at the date of execution of the will is shifted to the person impeaching the will.

In Anandrao Ganpatrao vs Vasantrao Madhavrao, (1907) 9 BOMLR 595 case, the Court held that if the insanity of the testator before the date of the will is once established, the burden of proof that it was made during a lucid interval lies on the person propounding the will. If, however, it is not established, or habitual insanity does not exist, the burden of proving actual insanity at the date of the execution of the will shifts to the person impeaching the will.

If the testator is not of sound mind at the time of the execution of a will, then the will is invalid regardless of his state of mind before or after such execution. In other words, the will of an incapable is not validated by the supervening of capacity. Conversely, if the testator was of sound mind at the time of the making of the will, the will is valid even if the testator should later on become insane and die in that condition. In other words, supervening incapacity does not invalidate an effective will.

Problem 01:

If there is no proof as to the soundness of the mind of the testator at the time he executed his will, what is the status of his will assuming that he complies with all other requisites for its validity?

Solution:

The will is valid. This is so because generally, in absence of proof to the contrary, the law presumes that every person is of sound mind. Such presumption of soundness of mind, however, does not arise if the testator was:

1.     Publicly known to be insane, one month, or less, before making his will;  

2.     Under guardianship at the time of the making of the will.

Problem 02:

When X was a baby, she had accident. As a result, she suffered from insanity. When she was in her thirties, she executed a will. After sometime, her brain damage was totally cured. What is the status of the will?

Solution:

The will was made by her when she was insane, hence the will is void. The will of an incapable cannot be validated by supervening capacity. The ability, as well as the power to make a will must be present at the time of the execution of the will.

Problem 03:

When X was a baby, she had accident. As a result, she suffered from insanity. When she was in her thirties her brain damage was totally cured. After recovering from insanity she executed a will. What is the status of the will?

Solution:

The will was made by her when she is cured from insanity, hence the will is valid. The will of an incapable cannot be validated by supervening capacity. The ability, as well as the power to make a will must be present at the time of the execution of the will

Capacity to Make a Will of Dumb, Deaf and Blind Person:

One who is deaf and dumb from birth is presumed to be an idiot and, therefore, incapable of making a will, but the presumption may be rebutted by producing evidence of lucid intervals. This explanation makes it clear that such a person can make a will if he is able to know what he does by it. Mere blindness will not incapacitate a person from making a will, provided he is able to know what he does. It will, therefore, be sufficient if there is satisfactory proof of the knowledge and approval of the will by the blind man.  

Capacity to Make a Will of Illiterate Person:

An illiterate can make an ordinary or notarial will because a person who does not know how to read and write does not mean he does not understand the language. It is to be noted that the illiterate cannot make a holographic will.

Capacity to Make a Will of Person Prohibited by Law:

A person suffering from civil interdiction (prohibition) qualified to make a Will.  He is deprived only of the power to dispose of his properties through acts inter vivos but not through acts mortis causa. When a person, acting with awareness that their death is approaching, gives something to another person, then the resulting gift is known as a gift causa mortis.

Capacity to Make a Will of Married Woman:

A married woman may dispose by will of any property which she could alienate by her own act during her life without the consent of her husband and the authority of the court. A married woman may dispose of her separate property and her share in the conjugal or absolute community property.

Capacity to Make a Will of Critically Ill Person:

Mere weakness of mind or partial imbecility from disease of body or from age does not necessarily render a person incapable of making a will. Illness which impairs the mind of a person in such a manner as to deprive him of the power of understanding the nature of the instrument or the effect of its provision will invalidate the will.

In F. J. Woolmer v Mrs. D. I. Daly, ILR (1920) 1 Lah 173  case, the will of a testator who was suffering from paralysis was held to be good as the paralytic stroke had not affected his mental capacity to such an extent that he was unable to understand and will of a simple nature

In Batton Singh V Amirchand, PC 1948 case, the Privy Council observed that a testator may have a clear apprehension of the meaning of draft will submitted to him and may approve of it, and yet, if he was at the time through infirmity or disease so deficient in memory that he was oblivious of the claims of his relatives and if that forgetfulness was an inducing cause of his choosing strangers to be his legatees, the will is invalid.

According to S. 60 of the Indian Succession Act, 1925, a father, whatever his age may be, may by will appoint a guardian or guardians for his child during minority.

Conclusion:

All persons of sound mind, not being minor and who are not expressly prohibited by law may make a will. It shall be sufficient if the testator was able at the time of making the will to know that the testator must understand that he is giving his property to one or more objects of his regard, he must understand and recollect this extent of this property and He must also understand the nature and extent of claims upon him both of those whom he is including in his will and those whom he is excluding from the will. Depending upon the facts, the validity is determined. If instructions are given in sound mind & its carried out in faithful manner, even if the testator doesn’t understand what he is doing after, it will be considered as a valid will.