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Illustration

If a testator says "I bequeath goods to A", or "I bequeath to A", or "I leave to A all the goods mentioned in the Schedule" and no Schedule is found, or "I bequeath ‘money’, ‘wheat’, ‘oil’’’ or the like, without saying how much, this is void.


COMMENTS
Section 89 states that a Will or bequest not expressive of any definite intention is void for uncertainty. Section 89 comes in Chapter VI of the Succession Act, which deals with ‘Construction of Wills’, consisting of sections 74 to 111. Thus, it is to be seen whether while construing this Will one can find out the intention of the testator. If the Will contains provisions expressive of any definite intention, then that Will will not become void because of uncertainty. Section 89 applies only to those cases where a Will is so indefinite that it is not possible to give any definite intention to it at all. If the testator indicates what he intends to bequeath and that indication is sufficient to identify the property bequeathed, there cannot be any difficulty because the testator himself has made the selection of the properties. So also if the testator indicates the purposes for which the properties are bequeathed, then that bequest cannot also fail for vagueness; Papoo v. Kuruvilla, 1994 (2) KLT 278.

90. Words describing subject refer to property answering description at testator’s death
The description contained in a will of property, the subject of gift, shall, unless a contrary intention appears by the will, be deemed to refer to and comprise the property answering that description at the death of the testator.

91. Power of appointment executed by general bequest
Unless a contrary intention appears by the will, a bequest of the estate of the testator shall be construed to include any property which he may have power to appoint by will to any object he may think proper, and shall operate as an execution of such power; and a bequest of property described in a general manner shall be construed to include any property to which such description may extend, which he may have power to appoint by will to any object he may think proper, and shall operate as an execution of such power.

92. Implied gift to objects of power in default of appointment
Where property is bequeathed to or for the benefit of certain objects as a specified person may appoint or for the benefit of certain objects in such proportions as a specified person may appoint, and the will does not provide for the event of no appointment being made; if the power given by the will is not exercised, the property belongs to all the objects of the power in equal shares.

Illustrations



A, by his will bequeaths a fund to his wife, for her life, and directs that at her death it shall be divided among his children in such proportions as she shall appoint. The widow dies without having made any appointment. The fund will be divided equally among the children.

93. Bequest to "heirs", etc., of particular person without qualifying terms
Where a bequest is made to the "heirs" or "right heirs" or "relations" or ‘‘nearest relations’’ or "family" or "kindred" or "nearest of kin" or "next-of-kin" of a particular person without any qualifying terms, and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed as if it had belonged to such person and he had died intestate in respect of it, leaving assets for the payment of his debts independently of such property.

Illustrations

(i) A leaves his property "to my own nearest relations". The property goes to those who would be entitled to it if A had died intestate, leaving assets for the payment of his debts independently of such property.


(ii) A bequeaths 10,000 rupees "to B for his life, and, after the death of B, to my own right heirs". The legacy after B’s death belongs to those who would be entitled to it if it had formed part of A’s unbequeathed property.
(iii) A leaves his property to B; but if B dies before him, to B’s next-of kin; B dies before A; the property devolves as if it had belonged to B, and he had died intestate, leaving assets for the payment of his debts independently of such property.
(iv) A leaves 10,000 rupees "to B for his life, and after his decease to the heirs of C". The legacy goes as if it had belonged to C, and he had died intestate, leaving assets for the payment of his debt independently of the legacy.

94. Bequest to "representatives", etc., of particular person
Where a bequest is made to the "representatives" or "legal representatives" or "personal representatives" or "executors or administrators" of a particular person, and the class so designated forms the direct and independent object of the bequest, the property bequeathed shall be distributed as if it had belonged to such person and he had died intestate in respect of it.

Illustration

A bequest is made to the "legal representatives" of A. A has died intestate and insolvent. B is his administrator. B is entitled to receive the legacy, and will apply it in the first place to the discharge of such part of A’s debt as may remain unpaid: if there be any surplus B will pay it to those persons who at A’s death would have been entitled to receive any property of A’s which might remain after payment of his debts, or to the representatives of such persons.


95. Bequest without words of limitation
Where property is bequeathed to any person, he is entitled to the whole interest of the testator therein, unless it appears from the will that only a restricted interest was intended for him.

COMMENTS
When a testator bequeaths a property to another without mentioning as to what interest he intends to confer on the legatee, the latter will get the absolute interests of the former. Section 95 of the Indian Succession Act envisages that where a testator bequeathed property to a person, such person (legatees) would be entitled to the entire interests of the testator. But when the testator has manifested in the will to give the legatee only a limited interest in the property, he cannot claim any right more than what the testator had intended. However, if the legatee was given only a restricted interest, section 95 makes the position clear that he will not get the whole interests of the testator; Narayanan Anandan v. Rakesh, 1994 (1) KLT 475.

96. Bequest in alternative
Where a property is bequeathed to a person with a bequest in the alternative to another person or to a class of persons, then, if a contrary intention does not appear by the will, the legatee first named shall be entitled to the legacy if he is alive at the time when it takes effect; but if he is then dead, the person or class of persons named in the second branch of the alternative shall take the legacy.
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