Persons of Unsound Mind

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. Swifen 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 were aware of what they were doing. Ex -
planation 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 pro-
pounds 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 id-
iot, a lunatic or other disqualified person as it is not necessary that the legatee should be capable of assenting
it.

Revocability of Will
S.62 of the Indian Succession Act deals with the characteristic of a Will being revocable or altered anytime
during the lifetime of the testator. S. 70 of ISA provides the manner in which it can be revoked
A mere intention to revoke is not an effective revocation. The revocation of the Will should be in writing and
an express revocation clause would revoke all the prior Wills and codicils. If there is no express clause to the
effect then the former Will would become invalid to the extent of its inconsistency with the latest Will, this is
known as an implied revocation (however it should be shown that the differences are irreconcilable). How-
ever if there is no inconsistency between the Wills then they cannot be considered as two separate Wills but
the two must be read together to indicate the testamentary intention of the testator.
Revocation can also be made in writing through declaring an intention to revoke and the writing must be
signed by the testator and attested by two witnesses. The deed of revocation has to be executed in the same
way as the Will itself.
The Will maybe burnt or torn by the testator or by some other person in his presence and by his direction
with the intention of revoking the same. The burning of the Will must be actual and not symbolic. The burn-
ing must destroy the Will atleast to the extent of his entirety. Further the Will need not be torn into pieces. It
would be sufficient if it is slightly torn with the intent of revocation.
The Will can be revoked expressly by another Will or codicil, by implied revocation, by some writing, by
burning or tearing or by destroying otherwise. Cancellation of a Will by drawing lines across it is not a mode
of revocation. Under the Hindu Law the Will is not revoked by marriage or by subsequent birth