Who is capable of making wills and what property may be bequeathed by will in India?

Will:

According to Section 3 of the Indian Succession Act “wills” means the legal declaration of the intention of the testator with respect to the property which he desires to be carried into effect after his death.”

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Capacity to make wills:

Every Hindu of sound mind and who is not a minor may dispose of his property by will. Minority for the purpose is determined by the Indian Majority Act and not by the rulers of Hindu Law.

The property, which a Hindu cannot give by gift, cannot be given by will also.

Property which may be bequeathed by will:

The follow­ing property can be given by will by a Hindu:

(i) According to all the schools his separate and self-acquired property.

(ii) According to Dayabhaga School, a coparcener and a fa­ther may dispose of all his property whether self-acquired or ancestral.

(iii) According to Mitakshara Law, no coparcener, not even a father, can dispose of by will his undivided coparcenary interest. A sole surviving coparcener may dispose of his joint family prop­erly by will as if it were his separate property. A will operate from the date of the testator’s death; therefore, if a son is born to the testator or a son is adopted subsequently, it will so far as it relates to coparcenary property be inoperative and the property will pass to the son by survivorship.

In Aryamurthi v. Subbarayya Setty, A.I.R. 1972 SC 1229, it has been held that a coparcener, including a father, cannot devise by will joint family property or any part thereof because on his death the property passes by survivorship to another coparcener.

(i) A Hindu female may dispose of her Stridhan by will subject in certain cases to the consent of her husband.

(v) The owner of an impartible estate may dispose of it by will, unless there is a special custom prohibiting him from doing so.