What is the Meaning of 'Unprivileged Will' in India and Can it be Revoked?

 

INTRODUCTION

 

Today, I will discuss about revocation of Unprivileged Wills. This issue was also considered in the latest case-law of Badrilal v. Suresh, 2021 SCC OnLine SC 1001.

 

MEANING OF ‘WILL’

 

Before adverting any further, let us understand the general meaning of the term ‘Will’. It has been defined as “a document by which a person directs his or her estate to be distributed upon death.” Further, it is also comprehended that “the word ‘will’ has two distinct meanings. The first, and strict, meaning is metaphysical and denotes the sum of what the testator wishes, or ‘wills,’ to happen on his death. The second, and more common, meaning is physical, and denotes the document or documents in which that intention is expressed.”

 

Thus, we see that ‘Will’ connotes a broad range of documents that could be made by any person to express his intention to distribute his properties to certain persons after his/her death. There are many types of Wills such as conditional will, joint will, mutual will, postnuptial will, prenuptial will, soldier’s will, privileged will, unprivileged will etc. But on the present show, our discussion shall remain confined to revocation of unprivileged wills in India.

 

In the Indian context, S. 2 (h) of the Indian Succession Act, 1925, provides that “‘will’ means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.” The Law of Wills falls within the domain of testamentary succession and Part VI of the Indian Succession Act deals with testamentary succession. It provides for various rules relating to competence of a person making will, effect of fraud on a Will, ways to alter, amend, revoke or revive a Will etc.

 

INDIAN SUCCESSION ACT

 

Broadly speaking, Indian Succession Act, 1925, categorizes Wills into two types, privileged and unprivileged. Privileged Wills are those wills that are executed by soldiers or military men while they are on active duty. On the other hand, Unprivileged Wills are those Wills that are executed by persons who are either not soldiers or are soldiers who are not on active duty. An Unprivileged Will could be executed according to the following rules: -

 

a. “The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.”

b. The signature or the mark of the testator “shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.”

c. The Will is to be attested by two or more witnesses and they shall sign the Will in the presence of the testator.

 

As already stated, on the present show, we are concerned with the Unprivileged Wills and their revocation or recalling as provided under S. 70 of the Indian Succession Act, 1925. S. 70 provides that an unprivileged will can be revoked: -

 

a. By marriage of the testator; or

b. By way of another will; or

c. By some writing declaring an intention to revoke the will. Such writing should be executed in the same manner as an unprivileged will; or

d. By burning, tearing or destroying of the Will by the testator.

 

Thus, by adopting the above-stated procedure, an Unprivileged Will could be revoked. In order to understand this in a better manner, let us go through the pertinent observations by the Court.

 

OBSERVATIONS BY THE COURT

 

Firstly, the Court observed that when a Will is revoked by a testator, it must follow the mandate of S. 70 and if a Will is disputed before the Court, evidence to such effect must be adduced to satisfy that all the formalities have been complied with.

 

Secondly, the Court opined that unless a Will is properly revoked, it will have a binding effect and an agreement or a suit of partition can be brought to alter the shares granted to the beneficiaries, after the death of the testator.

 

And lastly, the Court held that revocation of a Will under S. 70 is possible only either by executing another Will or by writing where the intention to revoke such will is expressed unequivocally by following all the formalities or by burning, tearing or otherwise destroying the same by the testator or under his direction.

 

Those were the observations by the Court. So, what are my concluding remarks.

 

CONCLUSION

 

I concur with the reasoning of the Court that when the legislature has enacted S. 70 that specifically deals with revocation of unprivileged wills, then any other way of revocation is statutorily impermissible, and requirements of S. 70 need to be mandatorily complied with.