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FAMILY LAW

FINAL DRAFT

Project Topic:
REVOCATION OF A VALID WILL

Submitted by
ANKIT DEV
Roll No. -
th th
7 Semester, 4 Year, B.A.LL.B. (Hons.)

Submitted to
Mrs. POOJA SHRIVASTVA
Faculty of Family Law

CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA
May, 2020.
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ACKNOWLEDGEMENT

The projects and presentations has been one of the most appreciated areas for the holistic
development of a student. It helps a student to be more curious, to know more and to
research more.
I would like to extend my deepest thanks to Dr. Pooja Shrivastav Ma’am who has
provided me with all the possibilities to complete the project. I would also like to extend my
regards to my friends for their aspiring guidance, invaluably constructive criticism and
friendly advice during the project work.
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CONTENTS

1. INTRODUCTION

2. DEFINATION OF WILL AND OTHER RELATED TERMS

3.

ESSENTIAL FEATURES OF A WILL

KINDS OF WILLS

CAPACITY AS WELL AS INCAPACITY OF MAKING A VALID WILL

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INTRODUCTION
Everybody likes to make sure that the life he has led has been meaningful and is concerned about
his property after his death. A person can ensure as to how his property should devolve and to
whom it shall devolve, after his death, through a Will. If a person dies without leaving behind his
Will, his property would devolve by way of law of intestate succession and not testamentary
succession (i.e. in accordance to the Will) Hence, it is preferable that one should make a Will to
ensure that one's actual intension is followed and the property is devolved accordingly. Will is an
important testamentary instrument through which a testator can give away his property in
accordance to his wishes. The importance and impact of a will can be seen through the
controversy that arose with regards to the will of Priyamwada Birla, widow of M.P.Birla, which
decided the fate of the Birla group of Industries.

The origin and growth of Will amongst the Hindus is unknown. However Wills were well known
to the Mohammedans and contact with them during the Mohammedan rule, and later on with the
European countries, was probably responsible for the practice of substituting informal written or
oral testamentary instruments with formal testamentary instruments. The Indian Succession Act,
1925, consolidating the laws of intestate (with certain exceptions) and testamentary succession
supersedes the earlier Acts, and is applicable to all the Wills and codicils of Hindus, Buddhists,
Sikhs and Jainas throughout India. The Indian Succession Act, 1925, does not govern
Mohammedans and they can dispose their property according to Muslim Law
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DEFINATION OF WILL AND OTHER

RELATED TERMS

Statutory Definition of ‘Will’: The term ‘Will’ is defined under ‘Section: 2(h)’ of The “Indian
Succession Act, 1925”, 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. A testator is authorised with
a power to appoint any person as beneficiary of his Will whereas ‘Section: 5’ deals with the law
regulating succession to deceased persons moveable and immovable property

Meaning of ‘will’: A Will or testament is a legal declaration by which a person, the testator,
names one or more persons to manage his/her estate and provides for the transfer of his/her
property at the time of death. A Will can be made by anyone above 21 years of age in India. A
Will is a statement made by a testator in the written form stating the manner in which his
estate/property must be distributed after his death. A Will being a testamentary document comes
into effect after the death of the testator and if the person dies without writing any Will then he is
said to be have died intestate. The person in whose favour the testator bestows the benefits called
beneficiary or legatee. A Will is otherwise called as Testament.1

Codicil: Codicil is an instrument made in relation to a Will, explaining, altering or adding to its
dispositions and is deemed to be a part of the Will. The purpose of codicil is to make some small
changes in the Will, which has already been executed. If the testator wants to change the names
of the executors by adding some other names, or wants to change certain bequests by adding to
the names of the legatees or subtracting some of them, a Codicil in addition to the Will can be
made to do so. The codicil must be reduced to writing and has to be signed by the testator and
attested by two witnesses. It is also the duty of the court to arrive at the intention of the testator
by reading the Will and all the codicils.

Executor: An executor is appointed by the testator, as distinguished from an administrator who

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is appointed by the court. Where the Will confers the powers to collect the outstanding, pay debts
and manage the properties, the person can be said to be appointed as an executor by implication.

Probate: Probate is an evidence of the appointment of the executor and unless revoked, is
conclusive as to the power of the executor. The grant of probate to the executor however does
not confer upon him any title to the property.

Letter of Administration: Letter of Administration is a certificate granted by the competent

court to an administrator where there exists a Will authorizing him to administer the estate of the
deceased in accordance with the Will. If the Will does not name any executor, an application can
be filed in the court for grant of Letter of Administration for the property

Attestation of Will: Attesting means signing a document for the purpose of testifying the
signature of the executants. Therefore an attesting witness signing before the executants has put
his mark on the Will, cannot be said to be a valid attestation. It is necessary that both the
witnesses must sign in the presence of the testator but it is not necessary that the testator have to
sign in their presence. Further it is not necessary that both the witnesses have to sign at the same
time. It is also not necessary that the attesting witnesses should know the contents of the Will.2

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ESSENTIAL FEATURES OF A WILL

A Will can be made at any time in the life of a person. A Will can be changed a number of times
and there are no legal restrictions as to the number of times it can be changed. It can be
withdrawn at anytime during the lifetime of the person making the Will. A Will has to be attested
by two or more witnesses, each of who should have seen the testator signing the Will.
The essential features are:
1. Legal declaration: The documents purporting to be a Will or a testament must be legal, i.e. in
conformity with the law and must be executed by a person legally competent to make it. Further
the declaration of intention must be with respect to the testator’s property It is a legal document,
which has a binding force upon the family.

2. Disposition of property: In a Will, the testator bequeaths or leaves his property to the person or
people he chooses to leave his assets/belongings. A Hindu person by way of his Will can
bequeath all his property. However, a member of an undivided family cannot bequeath his
coparcenery interest in the family property

3. Takes effect after death: The Will is enforceable only after the death of the testator
Under section 18 of the Registration Act the registration of a Will is not compulsory. Also, the
SC in Narain Singh v. Kamla Devi3 has held that mere non-registration of the Will an inference
cannot be drawn against the genuines of the Will. However it is advisable to register it as it
provides strong legal evidence about the validity of the Will. Once a Will is registered, it is
placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed,
mutilated or stolen. It is to be released only to the testator himself or, after his death, to an
authorized person who produces the Death Certificate
Since a testamentary disposition always speaks from the grave of the testator, the required
standard of proof is very high. The initial burden of proof is always on the person who
propounds the Will.

3
AIR 1954 SC 280
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KINDS OF WILLS

Conditional Wills:

A Will maybe made to take effect on happening of a condition. In Rajeshwar v. Sukhdeo4 the
operation of the Will was postponed till after the death of the testator’s wife. However if it is
ambiguous whether the testator intended to make a Will conditional, the language of the
documents as well as the circumstances are to be taken into consideration.
Joint Wills: Two or more persons can make a joint Will. If the joint Will is joint and is intended
to take effect after the death of both, it will not be admitted to probate during the life time of
either and are revocable at any time by either during the joint lives or after the death of the
survivor.

Mutual Wills:

Two or more persons may agree to make mutual Wills i.e. to confer on each other reciprocal
benefits. In mutual Wills the testators confer benefit on each other but if the legatees and
testators are distinct, it is not a mutual Will. Mutual Wills are also known as reciprocal Wills and
its revocation is possible during the lifetime of either testator. But if a testator has obtained
benefit then the claim against his property will lie. Where joint Will is a single document
containing the Wills of two persons, mutual Wills are separate Wills of two persons.

Privileged Wills:

Privileged Wills are a special category of Wills and other general Wills are known as
unprivileged Wills. S.65 of ISA provides that a Will made by a soldier or a airman or a mariner,
when he is in actual service and is engaged in actual warfare, would be a privileged Will. S.66
provides for the mode of making and rules for executing privileged Wills. Ss. 65 and 66 are
special provisions applicable to privileged Wills whereas other sections relating to Wills are
general provisions which will be supplementary to Sections 65 and 66 in case of privileged
4
AIR 1962 AP 178
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Wills.5

Who Can Make A Will

S.59 of Indian Succession Act provides that every person who is of sound mind and is not a
minor can make a Will.

5
Paruck The Indian Succession Act, ed. S S Subramani & K Kannan(9th edition, Butterworths, New Delhi, 2002)
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CAPACITY AS WELL AS INCAPACITY OF

MAKING A VALID WILL

U/s. 59 of ISA the existence of a sound mind is a sine quo non for the validity of the Will. Most
of the Wills are not made by young persons who are fully fit but are made by persons who are
aged and bed ridden Hence, law does not expect that the testator should be in a perfect state of
health , or that he should be able to give complicated instructions as to how his property was to
be distributed. A sound disposing mind implies sufficient capacity to deal with and understand
the disposition of property in his Will -

1) the testator must understand that he is giving away his property to one or more objects

2) he must understand and recollect the extent of his property

3) he must also understand the persons and the extent of claims included as well as those who are
excluded from the Will. In Swifen v. Swifen6 it was held that the testator must retain a degree of
understanding to comprehend what he is doing, and have a volition or power of choice.

Minors:

A minor who has not completed the age of 18 years is not capable of making Wills. The onus of
proof on determining whether the person was a minor at the time of making a Will is on the
person who has relied upon the Will. S.12 of the Indian Contract Act also provides that a minor
is incompetent to contract.

Other Persons Incapable Of Making A Will:

Explanation I to S.59 of ISA provides that a Hindu married woman is capable of disposing by
Will only that property which she can alienate during her lifetime. Explanation II provides that
the persons who are deaf, dumb or blind can prepare a Will if they are able to prove that they

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were aware of what they were doing. Explanation III provides for persons who are mentally ill
and insane. However subsequent insanity does not make the Will invalid i.e. if a person makes a
Will while he is of sound mind and then subsequently becomes insane the Will is valid and is not
rendered invalid by subsequent insanity. Further a person of unsound mind can make a Will
during his lucid interval. A Will made by a person who is intoxicated or is suffering from any
other illness, which renders him incapable of knowing what he is doing, is invalid.

Though the burden of proof to prove that the Will was made out of free volition is on the person
who propounds the Will , a Will that has been proved to be duly signed and attested Will be
presumed to have been made by a person of sound mind, unless proved otherwise. Further, a
bequest can be made to an infant, an idiot, a lunatic or other disqualified person as it is not
necessary that the legatee should be capable of assenting it.7

GENERAL QUESTIONS
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Who Can Make ‘Will’?

Every person who is competent to contract may make a will but he must be major, sound mind
and willing to write a Will. Any person who is the sole owner of a self-acquired property can
bequeath by way of will. A person of unsound mind can also make a will but only in lucid
intervals. A Will cannot be made by some persons i.e. minors, insolvent, persons disqualified
under any law by the court. A Will executed by a minor is void and inoperative though a
testamentary guardian can be appointed for the minor to dispose off the property. A Will can be
made by the deaf and dumb person by showing consent through writing or gestures in sign
language. Nothing prevents a prisoner or alien in India from drawing a Will.

For Whom The ‘Will’ Can Be Made?

Any person capable of holding property can be a legatee under a will and therefore a minor,
lunatic, a corporation, a Hindu deity and other juristic person can be a legatee. Sections 112 to
117 of ‘Indian Succession Act, 1925’ put some restrictions on the disposition of property by will
in certain cases. Dispositions of property by will in some cases have been declared void. If the
minor person has been named as legatee by a testator then a guardian should be appointed by the
testator himself to manage the bequeathed property.

What Can Be Bequeath In A ‘Will’?

Any movable or immovable property can be disposed off by a will by its owner, that property
must be a self acquired property of that person and it should not be an ancestral property of the
testator. According to Section: 30 of ‘Hindu Succession Act, 1956’ provides that any Hindu may
dispose off by will or other testamentary disposition any property, which is capable of being so,
disposed of by him in accordance with law.8

8
Sanjiva Row’s, The Indian Succession Act, 1925, ed.Prafulla Pant (seventh edition,Butterworths, New Delhi,
2000)
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GENERAL PROCEDURE TO MAKE A

‘WILL’

A ‘Will’ should be prepared with utmost care and must contain several parts to make a complete
Will though there is no defined format for making a Will but a general procedure should be
adopted while writing a Will by the testator which includes:

1. Declaration In The Beginning: In the first paragraph, person who is making a Will, has to
declare that he is making this Will in his full senses and free from any kind of pressure and
undue influence and he has to clearly mention his full name, address, age, etc at the time of
writing the Will so that it confirms that a person really wishes to write a Will.

2. Details of Property and Documents: The next step is to provide list of items and their
current values, like house, land, bank fixed deposits, postal investments, mutual funds, share
certificates owned by testator. He must also state the place where he has kept all the documents if
the will documents are under safe custody of the bank then testator has to write details about the
releasing of the Will from the bank. Here it is the most important duty of the testator to
communicate the above matter to the executor of the Will or any other family members, which
will make the Will valid after testator death.

3. Details of ownership By The Testator: A testator while making a original Will should
specifically mention that who should own his entire property or assets so that it will not affect
the interest of the successors after his death. If testator wishes the name of the minor as
beneficiary then a custodian of the property should be appointed to manage the property.

4. Attestation of the ‘Will’ : At the end, once the testator complete writing his Will, he must
sign the will very carefully in presence of at least two independent witnesses, who have to sign
after his signature, certifying that the testator has signed the Will in their presence. The date and
place also must be indicated clearly at the bottom of the Will. It is not necessary that a person
should sign all the pages of the Will instrument but he must sign to avoid any legal disturbances.
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5. Execution of A ‘Will’: On the death of the testator, an executor of the Will or an heir of the
deceased testator can apply for probate. The court will ask the other heirs of the deceased if they
have any objections to the Will. If there are no objections, the court will grant probate .A probate
is a copy of a Will, certified by the court. A probate is to be treated as conclusive evidence of the
genuineness of a Will. In case any objections are raised by any of the heirs, a citation has to be
served, calling upon them to consent. This has to be displayed prominently in the court.
Thereafter, if no objection is received, the probate will be granted and It is only after that Will
comes into effect.

REGISTRATION AND REVOCATION OF A

‘WILL’
According to the Section: 18 of the ‘Registration Act, 1908’ the registration of a Will is not
compulsory. Once a Will is registered, It is a strong legal evidence that the proper parties had
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appeared before the registering officers and the latter had attested the same after. The process of
registration begins when a Will instrument is deposited to the registrar or sub-registrar of
jurisdictional area by the testator himself or his authorised agent. Once the scrutiny of Will
instrument is done by the registrar and registrar is satisfied with all the documents then registrar
will make the entry in the Register-Book by writing year, month, day and hour of such
presentation of the document and will issue a certified copy to the testator. In case if registrar
refuses to order Will to be registered then testator himself or his authorised agent can institute a
civil suit in a court of law and court will pass decree of registration of Will if court is satisfied
with the evidence produced by the plaintiff. A suit can only be filed within 30 days after the
refusal of registration by the registrar. If the testator willing to withdraw the Will after the
process of registration then a sufficient reason has to be given to registrar, if satisfied he will
order for the registration of Will.

Revocation of ‘Wills’:

A Will is liable to be revoked or altered by the maker of it at any time when he is competent to
dispose of his property by Will. A Will can be revoked by testator of the Will at any point of
time which can be classified into two aspects such as:-

• Voluntary Revocation: A testator who wishes to revoke his original Will which is made by
him on a specified date and time, he can make revocation of the will himself by writing a
subsequent Will or codicil duly executed and by destruction of the previous will, means by
burning, tearing, destroying or striking out the signature of the original instrument of a Will.

• Involuntary Revocation: According to the Section: 69 of the Indian Succession Act, 1925

which deals with revocation of will by the testator’s marriage, however this provision does not
apply to Hindus. Section 57 of the Indian Succession Act clearly states that a testator’s marriage
will not make the Will invalid.

 Probate: 

It is the copy of the will which is given to the executor together with a certificate granted under
the seal of the court and signed, by one of the registrars, certifying that the will has been proved.
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The application for probate shall be made by petition along with copy of last Will and testament
of the deceased to the court of competent jurisdiction. The copy of the will and grant of
administration of the testator’s estate together, form the probate. It is conclusive evidence of the
validity and due execution of the will and of the testamentary capacity of the testator. A probate
is obtained to authenticate the validity of the will and it is the only proper evidence of the
executor’s appointment. The grant of probate to the executor does not confer upon him any title
to the property which the testator himself had no right to dispose off which did belong to the
testator and over which he had a disposing power with a grant of administration to the estate of
the testator. Probate proceedings cannot be referred to Arbitration. The probate court (whether it
is the District Court or High Court) has been granted and conferred with exclusive jurisdiction to
grant probate of a Will of the deceased.

CONCEPT OF WILL UNDER MUSLIM LAW

A Will or Testament or Wasiyat has been defined as “an instrument by which a person makes
disposition of his property to take effect after his death.”
Tyabji defines Will as “conferment of right of property in a specific thing or in a profit or
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advantage or in a gratuity to take effect on the death of the testator.”

The distinguishing feature of a Will is that it becomes effective after the death of the testator and
it is revocable.
Unlike any other disposition (e.g. sale or gift), the testator exercises full control over the property
bequeathed till he is alive: the legatee or beneficiary under the Will cannot interfere in any
manner whatsoever in the legator's power of enjoyment of the property including its disposal or
transfer (in that case the Will becomes revoked).

Object and Significance of Wills

The object of Wills according to the tradition of the Prophet is to provide for the maintenance of
members of family and other relatives where they cannot be properly provided for by the law of
inheritance.

At the same time the prophet has declared that the power should not be exercised to the injury of
the lawful heirs. A bequest in favour of an heir would be an injury to the other heirs as it would
reduce their shares and would consequently induce a breach of the ties of kindred.

Thus the policy of the Muslim law is to permit a man to give away the whole of his property by
gift inter vivos, but to prevent him, except for one third of his estate, from interfering by Will
with the course of the devolution of property according to the laws of inheritance.

A Will offers to the testator the means of correcting to a certain extent the law of succession, and
enabling some of those relatives who are excluded from inheritance to obtain a share in his
property, and recognizing the services rendered to him by a stranger.9

REVOCATION OF WILL
Muslim law confers on a testator unfettered right to revoke his will. A Muslim testator may
revoke, during his life-time, any Will made by him expressly or impliedly.

Thus, if he sells, makes gift of the subject of bequest or deals with the same in any other manner
like constructing a house on the piece of land bequeathed earlier, would implied revocation.
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For example, where the testator gives land to his friend under a Will but a year later gifts the
same to his daughter, the bequest in favour of the friend is automatically revoked.

Where a testator makes a Will, and by a subsequent Will gives the same property to someone
else, the prior bequest is revoked. But a subsequent bequest (though of the same property) to
another person in the same Will does not operate as a revocation of prior bequest, and the
property will be divided between the two legatees in equal shares.

It is not necessary that for revoking an earlier will, another will must be made. A Will can be
revoked by a simple and clear declaration to that effect or by a formal deed of cancellation or
revocation of Will.

Death of Legatee before Operation of Will (Lapse of Legacy)

Under Sunni law where before the Will can operate, the legatee dies, the bequest will lapse and
the property bequeathed would remain with the testator and on his death will go to his heirs in
absence of any other disposition by him.

Under Shia law, the legacy will lapse only if the legatee dies without leaving an heir or if the
testator, after the death of the legatee, revokes the Will. However, if the testator even after the
death of the legatee does not revoke the Will, on the date of operation of the Will, the benefit
under it will pass to the heirs of the legatee.

Sunni Law Shia Law

A bequest to a child in womb is valid if born It is valid even if born in the longest period of
within 6 months. gestation i.e. 10 months.

Rateable abatement of legacy applies. Rule of chronological priority applies.

Heir's consent should be given after the death of Heir's consent may be given before or after the
testator. death of testator.

Acceptance of the legacy before the testator’s Acceptance of the legacy during the testator’s
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death is of no effect. life time is lawful.

   

Abatement of Legacies
Rateable Abatement
Where a bequest of more than one-third of property is made to two or more persons and the heirs
do not give their consent, the shares are reduced proportionately to bring it down to one-third, or
in other words, the bequest abates rateably. The above rule applies in Sunni law only.

Chronological Priority
According to Shia law, if several bequests are made through a Will, priority would be
determined by the order in which they are mentioned or by the point of time. Thus, legacies take
effect in order of preference.

The legatee mentioned first in the will gets his share as mentioned under the will. After giving
his share, the remaining goes to the second legatee. If there still remains something, it goes to the
third and as soon as the one-third property is exhausted, the distribution is stopped and the next
legatee does not get anything.
Thus, here a legatee either gets his share or gets some share or gets nothing at all.10

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CONCLUSION

Long before the Hindu Wills Act, 1870 purported to confer on the Hindus the power to make
Will by making the provisions of the Indian Succession Act, 1865 applicable to the Hindus, the
power of the Hindu to make Will was clearly accepted and recognized by legislations and
Judicial decisions, and therefore, the power of the Hindus to make Wills in India was not created
by and was not to be traced from direct legislation. The concept of Will was first introduced in
Bengal. Under old Hindu Law the power of alienation inter vivos is different vis-avis classes
such as families governed by Mitakshara law. Aliyasanthanam law, Dayabhaga law, etc. We may
pin point the position thus:

Under Mitakshara School no bequest can be made by a member of an undivided family of the
whole or part of his share in the ancestral property. Further he is not authorized to bequest
property which he could not have alienated. Although a person can dispose of all his property
through Will if the same is self aquired or private property and in no way belongs to the joint
family property.

But can a coparcener bequeath with the consent of the other coparceners his coparcenery
interest? There is conflict of opinion in this regard. Madras High Court decisions are not
uniform. In a case, father’s Will in favour of his daughter of a reasonable portion of his
undivided coparcenery property with the consent of his major sons and his minor son by
guardianmother was upheld. But A’s bequest in favour of his wife for her maintenance was held
not binding on the family in Subbarami Reddi v. Ramanna. Where a father made an unequal
distribution of the coparcenery property among his major sons with their consent the court
upheld it only as a family arrangement and not as a Will. As an undivided brother bequeathed a
portion of his undivided property in favour of his daughter with the consent of his major brother
B. this was also upheld only as a family settlement or arrangement.
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BIBLIOGRAPHY
(i) BOOKS

• Paras Diwan, Modern Hindu Law (23rd Ed., 2016)

• B.M. Gandhi, Hindu law (2nd Ed., 2012).

(ii) STATUES

• Hindu maintenance and adoption Act, 1956

• Hindu Marriage Act, 1955

(iii) WEBSITES

• https://indiankanoon.org/

• https://www.netlawman.co.in

• https://www.lawcommissionofindia.nic.in

• https://www.comtax.up.nic.in

• https://www.law.cornell.edu/

• https://www.legalserviceindia.com

• https://www.lawhandbook.org

• http://www.shareyouressays.com/knowledge/customs-are-an-important-source-of-hindu-law
essay/117259