A person who in his individual capacity takes a benefit under a will may, in another character, elect to take in opposition to the will.
Illustration:
The estate of Sultanpur is settled upon A for life, and after his death, upon B. A leaves the estate of Sultanpur to D, and 2,000 rupees to B, and 1,000 rupees to C, who is B's only child. B dies intestate, shortly after the testator, without having made an election.
C takes out administration to B, and as administrator elects to keep the estate of Sultanpur in opposition to the will, and to relinquish the legacy of 2,000 rupees. C may do this, and yet claim his legacy of 1,000 rupees under the will.
Legal Commentary & Landmark Judgments: Section 185
Section 185 provides that a person taking in an individual capacity under a will may, in another character, elect to take in opposition to the will.
Where a trustee is left a personal legacy of Rs. 10 Lakhs in a will that also purports to dispose of trust real estate to a third party, counsel should invoke Section 185; the trustee can pocket the Rs. 10 Lakhs legacy while legally blocking the transfer of the trust land.