The main concept to which a Will is dedicated is the concept of 'legacy', which means distributing the estate of deceased among certain beneficiaries according to rules set out in the Will. In other words, a Will is an instrument which ensures one's property is devolved as wished and the rightful heirs receive their fair shares. The Indian Succession Act, 1925 (ISA) provides in Section 2(h) that a Will is 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."[1]

A testator is the author of the Will who bequests his/her property or benefit to a person, called legatee or beneficiary while an executor, as per Section 2(c) of ISA, 1925, is a person to whom the execution of the last Will of a deceased person is, by the testator's appointment, confided."[2]

The role of the executor of a Will in transferring property to the beneficiaries is important in India. The executor is legally responsible for safeguarding the deceased's assets, ensuring that the provisions of a Will and the wishes of the deceased are carried out, including the distribution of property to the beneficiaries, and the performance of other obligations of the deceased.[3]

The jurisprudential concept that the executor is a creature of the Will" and derives his/her authority from the Will has been affirmed at various instances, such as by the Supreme Court of India in Crystal Developers v. Asha Lata Ghosh[4]. This authority is usually vested in the executor by the testator, who may also name the executor as a beneficiary under the same Will.

In this context, Section 141 of ISA, 1925 stipulates that if a legacy is left to someone who is appointed as an executor, then he may not take the legacy until the Will is proven or until he otherwise manifests that he wishes to act as an executor.[5] Therefore, there is no restriction on a legatee also being an executor of the Will as long as the following conditions are fulfilled:

Proof Of Will

In Shashi Kumar Banerjee & Ors. v. Subodh Kumar Banerjee since deceased and after him his legal representatives & Ors.[6], the Supreme Court elaborated the principles governing the high standard of proof of Will. It noted that the onus to prove the Will is on the propounder and he has to satisfy the court that the will was not only the physical act but also the mental act of the testator.

However, in the case where a Will is prepared and executed under circumstances which appears to be suspicious to the court, it is for the propounder of the Will to remove such suspicion and prove affirmatively to the court about its genuinity.

The argument pertaining to suspicious circumstances, for instance a shaky or doubtful signature of the testator"[7], varies depending upon the facts and circumstances in each case, and is a matter for the courts to decide.

In this regard, the judgement of the Supreme Court in Kavita Kanwar v. Mrs. Pamela Mehta & Ors.[8] assumes significance. Herein, the appellant, Mrs. Kavita Kanwar, was the major beneficiary as well as the executor of the Will in question. In the present case, the Will under consideration had several suspicious circumstances surrounding it such as,

the absence of plausible explanation for exclusion of other legal heirs in spite of cordial relations with the testatrix;
combination of handwritten and typed portions in the Will;
Mrs. Kavita Kanwar's false claim of non-participation in the execution of the Will; and
Presence of an alleged third page of the Will

The Apex Court emphasized the importance of quality and nature of all the unusual circumstances in a case and its holistic impact upon making of the Will. It noted that each of the above suspicious factors, would individually fail to invalidate the propounded Will however, upon an analysis of its cumulative effect, it cannot be said that the testatrix was aware of and understood the meaning, purport and effect of the contents of the Will in question." Therefore, the propounder of Will, Mrs. Kanwar had failed to clear the suspicious circumstances to the satisfaction of the court, thereby also failing to prove the Will.

Manifestation Of Intention To Act As An Executor

As noted in the above discussion, an executor can receive legacy upon proof of Will. However, there may be some circumstances when he/she does not have time to get the Will proved but still manifests an intention to act as an executor, in such cases he is entitled to the legacy bequeathed upon him. The judgment in John Francis Anthony Gonsalves ... v. Mrs. Agnes Mary Conception[9] affirmed the above legal position.

The Bombay High Court analyzed the nature of Section 141 to observe that an executor either has to prove the Will or otherwise to manifest the intention to act as executor. In the present case, the court held that the petitioners came to know about the existence of Will only in April, 1990 [...]and by immediately applying for probate, they have also manifested their intention to act as executors.

The learned trial Court wrongly came to conclusion that the petitioners had not manifested their intention to act as executors for long period of twenty-one years and are not entitled to probate under Section 141 of the Indian Succession Act"

The Apex Court in Bhagwani Kuer v. Tapeswari Kuer[10] stated that "to manifest an intention to act as executor, the executor must do things which he was directed to do in the Will by the testator". Herein, a bequest was made by the testator in favor of one Shyam Narain Singh, who was supposed to perform the testator's cremation and also the Sraddha ceremony since the latter's sons had predeceased him. The relevant portion of the Will has been produced hereunder:

"That on the death of me, the executant, the aforesaid executors, should perform the Sraddha ceremonies of me, the executant according to the means and custom in the family".

Upon examining the facts of the case, the court determined that although Shyam Narain Singh attended the cremation ceremony, he did not perform the Sraddha ceremony. The coram observed that, "it is clear that there is a distinction between cremation ceremonies and Sraddha ceremonies which are periodic. It is also evident that what the testator desired his executors to do was that they should perform his Sraddha ceremonies.

The manner in which he refers to Shyam Narain Singh in his Will, almost as a substitute for a son, shows that he expected Shyam Narain Singh to perform his Sraddha ceremonies as his own sons had pre-deceased him. There is no evidence whatsoever on record that Shyam Narain Singh ever performed any such ceremony." As a result, Shyam Narain Singh was not entitled to succeed to the legacy.

In another judgment titled Himungsu Kumar Basu v. Sudhangsu Kumar Basu,[11] while elaborating on the conditional nature of Section 141 of ISA, the court went a step ahead to comment that a specific bar against a legatee to get legacy unless he/she fulfills the terms and conditions of the Will is a form of 'reciprocal promise.'

The Calcutta High Court ruled that the named executors are obliged to discharge their duties as representatives of the testator. If one fails to discharge such duties then such person cannot claim any equity. Therefore, if the law is not read in such manner then Section 141 of the Indian Succession Act, 1925 will have redundant face value."

The ratio decidendi of the aforementioned case was confirmed in Siddamurthy Jayarami Reddy v. Godi Jayarami Reddy,[12] wherein it was held that the legacy left to the executor did not vest in him since he had not fulfilled his obligations under the Will. The executor was instrumental in frustrating the adoption of son by testator's daughter, and resultantly, he had no entitlement to the testator's estate.

Conclusion
Considering that testamentary dispositions always speak from the grave, utmost caution must be exercised. It must be ensured that the various legal formalities and requirements of the Indian Succession Act are met before the property of the testator is distributed among legatees. This includes ensuring the fulfilment of 'implied condition' of an executor acting or manifesting to act as one for him to receive a legacy.

However, another important aspect to be noted is that when a legacy is given to an executor, and it is not the intention of the testator that such legacy is to be given to the executor in compensation of his service. In that case, the Will must mention that the executor would be entitled to the legacy even if he refuses to act as the executor of the Will.

End-Notes:

1. Indian Succession Act, 1925, S. 2(h).
2. Indian Succession Act, 1925, S. 2(c).
3. Smt. Suhashini Dasi v. Ahi Bhusan De, AIR 1963 Cal. 520.
4. (2005) 9 SCC 375: AIR 2004 SC 4980.
5. Indian Succession Act, 1925, S. 141.
6. AIR 1964 SC 529.
7. (2009) 3 SCC 687: AIR 2009 SC 1766.
8. (2021) 11 SCC 209: 2020 SCC OnLine SC 464: AIR 2020 SC 2614.
9. 2007 SCC OnLine Bom 799: AIR 2008 Bom 1
10. (1973) 2 SCC 646 : AIR 1973 SC 2583
11. 2003 SCC OnLine Cal 562: AIR 2004 Cal 217 (Cal).
12. (2011) 5 SCC 65: AIR 2011 SC 1342.