January 27, 2022

Legal Status of a Dead Person


About Dead Person

Dead man is not a legal person. As soon as a man dies, he ceases to have a legal personality. Dead men do not remain as bearers of rights and duties. It is said that they have laid down their rights and duties with their death. Action personalis moritur cum persona– action dies with the death of a man. With death personality comes to an end. A dead man ceases to have any legal right or bound by any legal duty. Yet, law to some extent, recognises and takes account of the desires or intentions of a deceased person. Law ensures a decent burial, it respects the wishes of the deceased regarding the disposal of his property, protects his reputation and in some cases continues pending action instituted by or against a person who is now deceased. The testaments of the dead are respected and enforced by the law. This does not mean that the dead have a right to have their wills enforced.

Rights and Legal Status of a Dead Person

The will is enforced in the interest of the living legates to whom property is bequeathed. If the will does not contain any disposition of property in favour of any human legatee, it will not be enforceable. This shows that right to have a will enforced is not that of the testator but only that of the living legates. The reputation of the dead is also protected by the law. A libel on dead persons may be actionable in a court of law. This is, however, not recognition of any right in favour of tire dead. The living relations of the deceased would be harmed by defamatory statements against him. That is why such defamation is made actionable. It is obvious that the dead have no rights. That they have no duties clear enough, for they are beyond the reach of the sanctions of law. So deceased persons lose their personality with their lives.

Salmond points out three things in respect of which anxieties of living men extend beyond the period of their deaths, of which law will take notice. They are men’s body; her reputation and his estate.[1] Though the dead man’s corpse is the property of no one the law, however, seeks to ensure its decent burial[2] or cremation.[3] In law, the dead are things, not persons. Being not punished after their death, they are not entitled to any rights, though in following cases they have been given some rights.

1) Right of reputation.

2) Right of will

3) Right of decent burial.

Salmond observes that generally speaking, the personality of a human being may be said to commence with his birth and cease with his death. Therefore, dead men are no longer persons in the eyes of the law. They cease to having rights since they cease to any interests nor do they have any duties. A dead man’s corpse is not “property” in the eye of law. It cannot be disposed of by an instrument. Earlier, it was held that a person cannot, during his life-time, make a will disposing of any part or organ of his body but there has been a change in trend in modern times and today it is perfectly legal to donate eyes or any part of one’s body for the progress of medical science and in the interest of humanity.

Laws governing

Rights and Legal Status of a Dead Person in India

The criminal law provides that any imputation against a deceased person, if it harms the reputation of that person of living, and is intended to hurt the feelings of his family or other near relatives, shall be an offence of defamation under Section-499 of the Indian Penal Code.[4]

The reputation of dead man is to some extent protected by the law. The defamation against a dead person is no doubt punishable under the criminal law but only when it affects the interests of his relatives and near-ones who are living. The right so protected is in really not that of the dead man but that of his living descendants.[5] It is true that dead persons are not recognized as legal persons but the testamentary dispositions of the dead are carried out by law.

A person, can by his will make a valid trust for repairs and maintenance of the graveyard because it amounts to a charitable or public trust but he cannot, by a direction in his will provide that certain parts of his estate shall be permanently used for the maintenance of his own grave or tomb. Such a direction would be void and unenforceable being against the rule of perpetuity. The law of succession permits the desires[6]of the dead man to regulate the action of his successors. Whatever gifted by the deceased for a charitable purpose, shall be enforceable by law and the testament to that extent shall be valid.

Regarding the property of the dead man the law carries out the wishes of the deceased example, a will made by him regarding the disposal of his property. This is done to protect the interest of those who are living and who would get the benefit under the will. This is subject to the rule against perpetuity as well as law of testamentary succession.  Transfer of Property Act, Section 14 incorporates the rule against perpetuities, which forbids transfer of property for an indefinite time thereby making it alienable. Section 14 of the Transfer of Property Act restrains the power of creating future interests by providing in the rule against perpetuities that such interest must arise within certain limits. The rule of perpetuity looks to the date at which the contingent interest will vest, if it vests at all, and hold it to be void as “perpetuity if this date is too remote”.

And Section 1 and 4 of the Indian Succession Act, 1925 forbids the creation of a will whereby vesting of property is postponed beyond the lifetime of one or more persons and the minority period of the unborn person.

For more notes on Jurisprudence, click here.


[1] SALMOND . Jurisprudence (12th Ed.) P.301
[2] R.V.STEWART : (1840) 12 AD and El 773
[3] R.V. Prince, (1884) 12 QBD 247
[4] Explanation 1 of the Sec.499, 366
[5] R V.ENSOR, (1887) ILR 366

Author Details: Tanu Kapoor (Student, Rajiv Gandhi National University of Law)

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