Clarity of expression is important
Amit Kumar
If words used in the Will are vague and lack clarity, the very purpose of writing it is defeated and beneficiaries/non beneficiaries keep on litigating in the courts as to the true meaning of words employed by the testator.
Therefore, one should be careful in use of various expressions in the Will and should also have a clear understanding as to how the words mentioned in the Will shall be understood and interpreted after his demise.
Therefore, if you are going to draft a will then be sure to take expert advice and choose the words carefully. Clauses of the Will should not be contradictory. If the testator i.e. person who is writing the Will is disinheriting his close relations like son, daughter, wife etc., at least, a word should be mentioned in the Will for doing so. Immediate relations are mostly beneficiaries of the Will. If no reason is forthcoming in the Will, it would certainly be a circumstance to make the Will suspicious. Testator is free to bequeath or not to bequeath the properties acquired by him on his/her close relations. However, it is unusual to disinherit close relations. Therefore, reasons should be mentioned for doing so. This would have the effect of making the Will more credible.
Use of expression in the Will of husband/father requires extra care and caution. It has often been seen in the Will of a husband that after his death, he bequeaths the property in favour of his wife. However, disputes have arisen in a number of cases as to whether the husband has bequeathed the property in favour of his wife to enjoy the property during her life time or the wife has become absolute owner of the property after the demise of the husband.
In other words, the right of the wife is limited to enjoying the properties of her late husband only during her life time or she has become absolute owner. Use of words ‘absolutely’ and ‘exclusively’ in the Will would certainly be indicative of absolute control of the estate.
One common error noticed in the Will of Husband is that the wife shall enjoy the properties after his demise absolutely and exclusively and at the same time, it is also mentioned that after the demise of the wife, sons/daughter/beneficiaries would be entitled to a share or whole of the property in a particular manner. Courts have been called to interpret such Wills and if the Court comes to the conclusion on interpretation of words employed in the Will . If the court accepts the absolute ownership of the wife then other clauses mentioned in the Will would not have any effect.
Once a testator has bequeathed the property wholly and solely to his wife and the wife is alive on the date of demise of testator, the property becomes of his wife and any provision in the Will, in the manner in which the property is to be inherited after her death becomes redundant.
If the Wife dies intestate i.e. leaving no Will, the property will be inherited in accordance with law of succession and not as per manner laid down in the Will of the Husband.
If the husband is having any intention to give his wife only limited right of enjoying the property during her lifetime, it should be stated clearly and unequivocally failing which the other clauses in Will would be redundant.
This position of law is well settled. In the case of RameshwarBakhsh Singh case [AIR 1935 PC 187], the Privy Council held that where an absolute estate is created by a Will in favour of the devisee, other clauses in the Will which are repugnant to such absolute estate cannot cut down the estate; but must be held to be invalid.
The Supreme Court has reiterated the same view in the case of SadaramSuryanarayana v. Kalla Surya Kantham, (2010) 13 SCC 147.
Therefore, make up your mind before preparing your Will as to whether you want to give absolute estate to your wife after your death or limited one and say so clearly in your Will. Any ambiguity in the Will on this count can give rise to acrimonious legal battle between the beneficiaries of your Will.
— The writerr is an Advocate on Record, Supreme Court. He can be reached at induslawassociates@gmail.com
