Comment on the following statements: Certain basic principles are required to be followed in the construction of a will.
CS Professional · Drafting, Appearances and Pleadings · PYQS · December 2016
Comment on the following statements: Certain basic principles are required to be followed in the construction of a will.
Answer & Explanation:
There are two cardinal principles in the construction of Wills, deeds and other documents. The first is that clear and unambiguous dispositive words are not to be controlled or qualified by any general expression or intention. The second is, to use Lord Denham's language, that technical word or words of known legal import must have their legal effect even though the testator uses inconsistent words, unless those inconsistent words are of such a nature as to make it perfectly clear that the testator did not mean to use the technical terms in their proper sense. [Lalit Mohan Singh Roy v. Chikkun Lai Roy, ILR 24 Cal 834]. Cardinal maxim: The cardinal maxim to be observed in construing a Will is to endeavour to ascertain the intentions of the testator. This intention has to be primarily gathered from the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done, if he had been better informed or better advised. [Gnambal Ammal v. T. Raju Iyer, AIR 1951 SC 103, 105]. Relevant considerations: In construing the language of a Will, the courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense and many other things which are often summed up in somewhat picturesque figure. The court is entitled to put itself into the testator's arm chair. [Venkatanarasimha v. Parthasarthy, 41 IA 51, 70 (PC); Gnambal Ammal v. T. Raju Iyer, AIR 1951 SC 103,106]. Avoidance of intestacy: If two constructions are reasonably possible and one of them avoids intestacy while the other involves it, the court would certainly be justified in preferring that construction which avoids intestacy. [Kasturi v. Ponnammal, AIR 1961 SC 1302]. It is settled law that words in a Will must be construed in their ordinary grammatical sense unless it is shown that a clear intention to use them in a different sense exists and is so proved. [Guruswami Pillai v. Sivakami Ammal, AIR 1962 Mad 236]. Effect should be given to every disposition: It is one of the cardinal principles of construction of Will that to the extent that it is legally possible, effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. The intention of the testator should be gathered by giving a harmonious interpretation to the various terms of the Will as a whole. [Rampali v. Chando, AIR 1966 All 584,586]. Later part or last words to prevail in case parts irreconcilable or there is repugnancy. - If the several parts of the Will are absolutely irreconcilable, the part that is later has to prevail. [Section 88, Indian Succession Act, 1925; Somasundera Mudaliar v. Ganga Bissen Soni, 28 Mad 386]. In case of repugnancy, the last word in the Will shall prevail. [CIT v. Indian Sugar Mills Association, (1974) 97 ITR 486 SC)].
Topics: Drafting of Deeds
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