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.
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