Testamentary capacity

A Will is only as good as the mind that made it. If the testator did not understand what he was doing, the document fails.

Section 59 of the Indian Succession Act sets out the essentials for making a Will. There are four, and testamentary capacity and sound mind is the first.

A person has testamentary capacity only if he is in a sound state of mind.

But sound mind here means something specific. The testator must be able to comprehend perfectly three things. The condition of his properties. His relation to the persons who were or might have been the objects of his bequest. And the scope and bearing of the provisions of his Will.

So it is not a general test of sanity. It is a test of understanding the particular act.

And it is not a permanent state. A person who is generally insane can still make a valid Will during an interval in which he is of sound mind.

The four essentials, under section 59 of the Indian Succession Act.

1. Testamentary capacity and sound mind
2. Knowledge of contents
3. Free from undue influence, fraud or coercion
4. A voluntary act

All four, not just capacity. A testator with perfect capacity who did not know what the document said, or who signed under coercion, has still not made a valid Will.

The test of capacity itself. A person is said to be in testamentary capacity only if he is in a sound state of mind. When in a sound state of mind, the testator should have sufficient capacity to comprehend perfectly:

• the condition of his properties;
• his relation to the persons who were, or might have been, the object of his bequest; and
• the scope and bearing of the provisions of his Will.

Who is eligible to make a Will. The workbook lists four categories:

Who cannot. No person can make a Will in a situation where he is not in a sound state of mind. The workbook gives three causes: intoxication, illness, or any other cause such that he does not know what he is doing.

What capacity does not require. It does not require registration. Registration of a Will is dealt with under the Registration Act, 1908, and section 18 makes it optional, so a non-registered Will is considered a genuine Will. Capacity is about the testator's mind, not the formalities.

Capacity and intention are two different failures. A sham Will is executed by a testator with full capacity who never intended any testamentary operation. A Will made without capacity fails for the opposite reason: the intention cannot be formed at all.

The workbook gives no figure for the capacity test itself. Section 15.2.3 states no age other than the bar on a minor, no medical threshold and no time limit. The section numbers - 59 of the Indian Succession Act, and 17 and 18 of the Registration Act - are the only references attached to it.

Illustrative figures; the workbook states the tests without figures.

Mr Salvi owns a house worth Rs 1,20,00,000, deposits of Rs 18,00,000 and shares worth Rs 26,00,000 - an estate of Rs 1,64,00,000. He has three children and one grandchild.

The last row is the one worth dwelling on. Capacity was never in doubt. The Will still fails, because section 59 requires all four essentials.

And the limb that catches the most cases in practice. Mr Salvi signs a Will believing he is leaving the deposits of Rs 18,00,000 to his grandchild, when the document in fact leaves the shares worth Rs 26,00,000. He had capacity. He did not have knowledge of contents, which is the second essential.

Chapter 15 (Tools for Estate Planning), section 15.2.3, Legal requirements and Testamentary capacity, lists the four essentials under section 59 of the Indian Succession Act, the four categories of person eligible to make a Will, the bar where the testator is not of sound mind, and then defines testamentary capacity through the three things the testator must comprehend. Section 15.2.4 follows with registration being optional. Expect a question on whether a named person - a minor, a blind person, an intoxicated person, an insane person in a lucid interval - can make a valid Will, and a definition question on the three limbs of comprehension.

• Four essentials, not one. Capacity and sound mind, knowledge of contents, freedom from undue influence or fraud or coercion, and a voluntary act. A question can fail a Will on any of them.
• A blind, deaf or dumb person CAN make a Will, provided they are able to know what they are doing. This is the most commonly mis-answered row in the list.
• An ordinary insane person can make a valid Will in a lucid interval. Permanent capacity is not required; capacity at the moment of making is.
• Intoxication defeats capacity. The workbook names it alongside illness.
• A minor cannot make a Will at all, whatever their understanding.
• A married woman may will only property she could alienate by her own act during her lifetime. Her capacity is not in question; the reach of her Will is.
• Capacity is not registration. Registration of a Will is optional under section 18 of the Registration Act, 1908, and an unregistered Will is a genuine Will.
• Do not confuse a lack of capacity with a sham Will. The sham Will has a fully capable testator with no testamentary intention.