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

Q.51 What are the modes of revocation of an unprivileged Will or codicil ? Ans. Section 70 of the Indian Succession Act deals with the revocation of unprivileged Will or codicil. The said Section reads as follows:- “70: Revocation of unprivileged Will or codicil No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. Illustrations(i) A has made an unprivileged Will. Afterwards, A makes another unprivileged Will which purports to revoke the first. This is a revocation.(ii) A has made an unprivileged Will. Afterwards, A being entitled to make a privileged Will makes a privileged Will, which purports to revoke his unprivileged Will. This is a revocation”. Thus, the revocation of an unprivileged Will can be brought about in the following ways :- (a) By operation of law (Eg. marriage. If the parties are Indian Christians including Anglo Indians, Parsis, Jews etc. marriage of the testator after the execution of the Will automatically brings about a revocation of the Will. But this does not apply to Hindus, Buddhists, Sikhs or Jains for reasons already indicated).(b) By writing - (i) another Will or codicil duly executed, or (ii) some other writing containing a declaration of an intention to revoke and observing the formalities for the execution of an unprivileged Will.(c) By destruction (i) by burning, or(ii) by tearing, or(iii) by otherwise destroying the Will. There is a popular misconception that a registered Will can be revoked only by another registered Will. It is not so. There need only be another Will (registered or unregistered) or some writing as enjoined by the first part of Section 70. (Vide Baby Mol Varghese v. P. S. Jacob (2019) 2 KLJ 245 = 2019 (2) KHC 177 – P. Somarajan - JThe burden of proving revocation is on the party who sets up the plea and in order that the loss of a Will may raise a presumption of revocation, it must be proved that the Will was not in existence at the time of the testator’s death. (Vide John Simon Gomez v. George John Gomez AIR 1955 TC 177 - Govinda Pillai, Joseph - J). There can be two or more Wills each declaring to be the last Will of the testator, provided the Court is satisfied that the testator intended all those Wills to operate together and there is no apparent inconsistency between them. (Vide Chinnappa v. Kailasam 41 MLJ 661 = AIR 1921 Madras 532 – Sir William Ayling (Officiating – CJ), Odgers - J). If a subsequent Will or codicil is partly inconsistent with one executed earlier, then such later instrument can be understood to revoke the former only to the extent it is inconsistent. But if two inconsistent Wills are to be found of the same date or without any date, then both are to be treated as void unless, after a struggle to reconcile between the two for establishing posteriority of the execution, the Court succeeds in finding out the relative periods of execution. But if the second Will by which the first Will is revoked partially is subsequently cancelled by the testator, the revoked portion of the first Will will not be revived by such cancellation. (Vide Surendra v. Sivadas AIR 1922 Cal. 182 - A Mookerjee, Cuming - JJ). There cannot be revocation of a Will by necessary implication. A Will can be revoked only by a document or some writing executed in the same manner as a Will or by tearing or by destroying the Will. (Vide Tadikonda Koteswara Rao v. Vallavarapu Venkateswara Rao 1996 (2) Andhra W.R. 29 (A.P.)- Krishna Saran Shrivastav – JJ.) Where a testator sends a letter duly signed and attested by two witnesses, to his brother expressing the testator’s desire to destroy his earlier Will, it can amount to revocation of the Will. (Vide Nishabar Singh v. Local Gurwara Committee, Manji Sahib, Karnal AIR 1978 Punjab and Haryana 402 (P & H) – R. N. Mittal – J) Striking off a particular clause or the name of the legatee is revocation pro tanto (to that extent) only. Mere writing of the word “cancelled”, drawing red line or scratching the signature etc. are not sufficient to bring about revocation under Section 70 of the Act. (Vide Raveendran Nair v. Valsala Devi 2001 (3) KLT SN 84 (DB). If the destruction of the Will is by a third person other than the testator, in order to operate as revocation, such destruction must be both in the presence of and on the direction of the testator. Hence, by necessary...

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

Justice V Ramkumar

Tags