diabetes, there is nothing to indicate the lack of testamentary
capacity. These ailments in themselves do not point to any one of
testamentary capacity. They are not such as would render a Testator
incapable of understanding that which he was doing when he made
his Will. The law does not expect a Testator to be in complete and
perfect physical health and wholly ailment free when making a
disposition. The explanations to Section 59 make it clear that certain
impediments such as hearing, speech or sight impediments do not
constitute testamentary incapacity. Under Explanation 3 even
persons who are, to use the unfortunate expression of the statute,
“insane” – afflicted by any one or more of the well-known medical
mental health disorders that are known to medical science today –
he or she may still validly make a Will during an interval of lucidity.
Consequently, it is never enough merely to say, for instance, that a
testator suffered from this or that ailment. It is unreasonable to
expect a testator to be in a most complete and perfect state of health.
Nobody ever is. That is most emphatically not mandate of the law,
as the Privy Council itself noted in Judah v Isolyne Shrojbashini Bose
& Anr,2 a view followed by this Court in Dr. Feroze Homi Duggan v
Jean Duggan,3 and by the Delhi High Court in K.L. Malhotra v
Sudershan Kumari & Anr.4 The law does not require every testator to
be in peak physical and mental condition, or to be possessed of
‘sound and disposing mind and memory’ in the highest degree.
Were it so, few would be able to make testaments at all. It is not even
necessary for a testator to be in the same state as once he used to be,
for even this would disable most in the inevitable decline of life.
