“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-V]

Q.21 What if, an unmarried testator after executing the “Will”, marries ? Ans. If the testator who is not married, marries after making the will, then by operation of law, the will stands revoked. This is, however, applicable only in the case of Indian Christians including Anglo Indians, Parsis, Jews etc. The above provision is not applicable in the case of Wills executed by a Hindu, Buddhist, Sikh or Jaina in view of the statutory exception carved out in the legal provision to be adverted to later.NOTE BY VRK: It may, however, be noticed that even though as per Section 70 of the Indian Succession Act, 1925, if the testator after executing a Will, marries, such marriage automatically brings about a revocation of the Will, the said provision has no application in the case of Wills executed by a Hindu, Buddhist, Sikh or Jaina in view of Restriction No: 4 of Schedule III read with Section 57 of the said Act. Hence, marriage by the testator does not bring about a revocation of the Will executed by a Hindu, Buddhist, Sikh or Jain. Q.22 Is a “Will” a compulsorily registrable document ? Ans. No. Registration of a will, which is optional under the provisions of the Registration Act, 1908, does not make it more effective. (Vide para 20 of Suraj Lamp and Industries Private Limited (2) v. State of Haryana (2012) 1 SCC 656 – 3 Judges - R. V. Raveendran, A. K. Patnaik, H. L. Gokhale - JJ). Q.23 What are the different kinds of “Will” ? Ans. Different types of Wills can now be seen.1. Duplicate Will - A Will executed in duplicate originals by a testator who retains one copy and gives the second copy to another person. The rules applicable to wills apply to both Wills and upon application for probate, both copies must be tendered into the registry of the Probate Court.2. Double Will - This is a testamentary instrument executed by two persons and giving the property of one dying first to the survivor or giving their separate property to survivor for life and then to third persons.3. Holograph/holographic Will - This is a handwritten Will by the testator. Also termed “olographic Will”. For decision on holograph Will, Vide Ramaswami v. Muttuswami ILR 15 Madras 380 – Sathasivam – J. In Ajit Chandra Majumdar v. Akhil Chandra Majumdar AIR 1960 Cal. 551 - P. B. Mukharji, H. Bose – JJ, it was observed as follows:-“The whole of this Will was written in the hand by the testator himself in English the handwriting is clear and firm. The law makes a great presumption in favour of the genuineness of a holograph Will for the very good reason that the mind of the testator in physically writing out his own Will is more apparent in a holograph Will than where his signature alone appears to either a typed script or to a script written by somebody else.”4. Joint Will - This is a testamentary instrument executed by two or more persons pursuant to their common intention for disposing of their several interest in property owned by them in common or their separate property treated as a common fund in favour of the devisee.A joint Will is a Will made by two or more persons putting down their testamentary wishes and intentions in one document which complies with the formal requirements. It takes effect as the separate Wills of the persons who have made it. Such a Will which is one disposition dealing with the properties of more than one testator is inconvenient but appropriate where used to exercise a joint power of appointment or where it is intended to make mutual Wills. It takes effect as the separate Wills of the persons who have made it. It is generally useful only where the parties wish to make a mutual Will and where a joint power of appointment is given to the parties. (Vide – Narayanan v. Sankunni 1954 KLT 197 = 1954 KHC 94 – Govinda Pillai, Joseph - JJ;Para 11 & 12 of Kochu Govindan Kaimal v. Lakshmi Amma AIR 1959 SC 71 = 1959 KHC 352 – 3 Judges – Venkatarama Aiyar, Gajendragadkar, A. K. Sarkar - JJ;Mary v. Thomas ILR 1970 (1) Kerala 406 – Raghavan, Unni Krishna Kurupp - JJ;V. Sarada and Others v. K. V. Narayana Menon and Others AIR 1989 Kerala 155 = 1987 KLJ 606 = 1987 KHC 8 Vargheses Kalliath - J;Kesavan Ananda Kumar v. Nangali Amma 1994 (1) KLT 927 – M. M. Pareed Pillay - J;Princelal C v. G.Presanna Kumari and Others ILR 2009 (3) Kerala 221 = 2009 KHC 636 -VRK-J;Narayani v. Sreedharan (2011) 4 KHC 321 = AIR 2012 Kerala 72 – M. Sasidharan Nambiar - J; Dilharshankar C. Bhachech v. Controller of a State Duty, Ahmedabad (1986) 1 SCC 701 = AIR 1986 SC 1707 – V. D. Tulzapurkar, Sabyasachi Mukherji - JJ;Palanisami K.S. (Dr.) v. Hindu Community in Generaland Citizens of Gobichettipalayam (2017) 13 SCC 15 = AIR 2017 SC 1473 – A. K. Sikri, Ashok Bhushan - JJ;Smitha K. S. v. Devaki 2020 (2) KHC 42 - Sathish Nainan – J;George P. John...

“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-V]

Justice V Ramkumar

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