Judicial Dictionary

Construing a will

It is seldom profitable to compare the words of one will with those of another or to attempt to find out to which of the wills, upon which decisions have been given in reported cases, the will before us approximates closely. Cases are helpful only in so far as they purport to lay down certain general principles of construction and at the present day these general principles seem to be fairly well settled.

The cardinal maxim to be observed by Courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarathy, 41 I. A. 51, (21 I. C. 339 P. C.),

“the Courts are entitled and bound to bear in mind other matters than merely the words used. ‘They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure. ‘The Court is entitled to put itself into the testator’s armchair’. . . .. . But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the Court is to carry out the intentions as expressed, and none other. The Court is in no case justified in adding to testamentary dispositions. . . . . In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life.”

A question is sometimes raised as to whether in construing a will the Court should lean, against intestacy. The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian Court. It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances; but it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. As Romer L. J., observed in Re Edwards; Jones v. Jones, (1906) 1 Ch. 570, (75 L. J. Ch. 321),

“it cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning.”

It is in the light of the above principles that we should proceed to examine the contents of the will before us.

Ref: AIR 1951 SC 103 : (1950) SCR 949

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