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WILL AND TRUST DEED

WILL

A Will means the solemn declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death, a document which speaks of his wishes after his death.

In other words, it is a solemn document by which the dead man entrusts to some trusted living person the task of carrying out his wish and desire as regards his estate after death.

A Will or any part of a will, the making of which has been caused by fraud or coercion or by such importunity as takes away the free agency of the testator, is void.

PERSONS CAPABLE OF MAKING A WILL
  • Every person of sound mind not being a minor can dispose of his property by a will.

  • A Hindu cannot dispose of his property so as to affect the right of maintenance of others as against his estate. So the right of wife or any other person entitled to maintenance cannot be defeated.

  • A married woman can dispose by will any property which she could alienate by her own act during her life.

  • Persons who are deaf and dumb and blind are not thereby incapacitated from making a will if they are able to know what they do by it, i.e., the nature, contents, and effect of the document.

  • A person who is ordinarily insane can make a will during an interval in which he is of sound mind.

  • Extreme old age does not debar any person from making a will. Provided he or she understands the nature and effect of the writing.

  • No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause that he does not know what he is doing.

  • A father, whatever his age may be, can by Will appoint a guardian for his child during minority.

  • A Mohamedan cannot dispose of his property by a will to an heir unless the others heirs consent to the bequest after the death of the testator, and if the bequest be to a non heir, it will be valid only to the extent of one-third of the surplus of the estate after payment of funeral expenses and debts, and the bequest on excess of the legal third cannot take effect unless the heirs consent thereto after the death of the testator.

    REVOCATION OF WILL

    A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by another will.

    TRUST DEED

    A Trust is an obligation attached to the ownership of the property out of confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another (Section 3 of Indian Trust Act).Although every person capable of holding property can be a trustee but not the Government of India. A Government servant cannot be the trustee of a mosque, temple or other religious institution.

    A trust ownership is different from other types of legal relationship, e.g. bailment, agency, mortgage, etc., which cannot pass a good title to the property even to a bona fide transferee for value without notice. A trustee cannot take advantage of the statute of limitation of the Limitation Act .A trust may be created by the act of the parties or by operation of law. The trust may be express or implied.

    A deed of trust by itself creates no endowment of the property. A trust is not always a settlement nor is a settlement always a trust.

    Therefore, a trust is an obligation annexed to the ownership of property arising out of confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another or the owner. The person who reposes or declares the confidence is called the author of the trust; the person who accepts the confidence is called the beneficiary. The subject-matter of the trust is called the trust property or trust money.

    LAWFUL PURPOSE OF TRUST

    A trust as provided under Section 6 of the Indian Trust Act, 1882, may be created for any lawful purpose. The purpose of a trust is lawful unless it is

    • Forbidden by law

    • Is of such a nature that, if permitted, it would defeat the provisions of any law: or

    • Is fraudulent; or

    • Involves or implies injury to the person or property of another: or

    • The court regards it as immoral or opposed to public policy.

    WHEN TRUSTEE CAN RENOUNCE

    A trustee who has accepted the trust cannot afterwards renounce it except

    • With the permission of a principle Civil Court of original jurisdiction, or

    • If the beneficiary is competent to contract, with his consent, or

    • By virtue of special power in the instrument of trust.

    A trust created by will can be revoked at the pleasure of the testator.