Will is an instrument where under a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. It has three essentials: 1) It must be a legal declaration of the testator’s intention; 2) That declaration must be with respect to his property; and 3) The desire of the testator that the said declaration should be effectuated after his death. The essential quality of a testamentary disposition is ambulatoriness of revocability during the executant’s lifetime. Such a document is dependent upon executant’s death for its vigour and effect. Section 2(h) of the Indian Succession Act says Will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. In the interpretation of Will in India, regard must be had to the rules of law and construction contained in Part VI of the Indian Succession Act and not the rules of the Interpretation of Statutes. On the other hand , Gift/settlement is the transfer of existing property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee. Gift takes effect by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 122 of the Transfer of Property Act defines the gift as a voluntary transfer of property in consideration of the natural love and affection to a living person. Further, in the case of a Will, the crucial circumstance is the existence of a provision disposing of or distributing the property of the testator to take effect on his death. On the other hand, in case of a gift, the provision becomes operative immediately and a transfer in praesenti ( latin word which means that present debt is to be discharged in the future) is intended and comes into effect. A Will is, therefore, revocable because no interest is intended to pass during the lifetime of the owner of the property. In the case of gift, it comes into operation immediately. The nomenclature given by the parties to the transaction in question, as we have already indicated, is not decisive. A Will need not be necessarily registered. The mere registration of a “Will” will not render the document a settlement. In other words, the real and the only reliable test for the purpose of
Will is an instrument where under a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. It has three essentials: 1) It must be a legal declaration of the testator’s intention; 2) That declaration must be with respect to his property; and 3) The desire of the testator that the said declaration should be effectuated after his death. The essential quality of a testamentary disposition is ambulatoriness of revocability during the executant’s lifetime. Such a document is dependent upon executant’s death for its vigour and effect. Section 2(h) of the Indian Succession Act says Will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. In the interpretation of Will in India, regard must be had to the rules of law and construction contained in Part VI of the Indian Succession Act and not the rules of the Interpretation of Statutes. On the other hand , Gift/settlement is the transfer of existing property made voluntarily and without consideration by one person called the donor to another called the donee and accepted by or on behalf of the donee. Gift takes effect by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Section 122 of the Transfer of Property Act defines the gift as a voluntary transfer of property in consideration of the natural love and affection to a living person. Further, in the case of a Will, the crucial circumstance is the existence of a provision disposing of or distributing the property of the testator to take effect on his death. On the other hand, in case of a gift, the provision becomes operative immediately and a transfer in praesenti ( latin word which means that present debt is to be discharged in the future) is intended and comes into effect. A Will is, therefore, revocable because no interest is intended to pass during the lifetime of the owner of the property. In the case of gift, it comes into operation immediately. The nomenclature given by the parties to the transaction in question, as we have already indicated, is not decisive. A Will need not be necessarily registered. The mere registration of a “Will” will not render the document a settlement. In other words, the real and the only reliable test for the purpose of
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