A myth hovering over the concept of "Will" is that a will once drafted, whether registered or not, can never be revoked. Today, through this blog, we will try to dig deep and assess the validity of this viral claim.
At the very onset, it needs to be emphasized that a will does not come into operation upon its execution rather the will becomes operational only upon the death of the testator (person making the will). It does not create any right in favour of any person till the demise of the testator. It is perfectly open to the testator to discard the will drafted and executed by him completely and write an entirely new will and/or amend the will in respect of certain portions of the dispositions made in the original will. A will is, therefore, an instrument through which a property is devolved, not through which a property is transferred. Hence, a will is always revocable during the lifetime of the maker of the will.
Section 62 of the Indian Succession Act, 1925 stresses this point in express words- "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".
There are different means for the revocation of unprivileged and privileged wills. Firstly, we will look at the revocation of unprivileged wills. Section 70 of the Indian Succession Act, 1925 provides the situations in which an unprivileged will can be revoked. They are:
By marriage.
By another will or codicil.
By some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is required to be executed.
By the burning, tearing, or otherwise destroying of the will by the testator or by some person in his presence and by his direction with the intention of revoking the same.
It may be noted that the provision relating to the revocation of a will due to marriage does not apply to Hindus. In other words, a will made by a Hindu testator does not stand revoked by his/ her marriage after the execution of the will, because of such marriage.
Generally, the following words are written at the beginning of the new will to expressly revoke the former testamentary document, if any, of the testator- "I, ________ , aged _______ years, residing at _____________________ hereby revoke all my previous Wills and Testamentary writings that I may have executed and I hereby declare this to be my last Will and Testament.".
For the revocation of a privileged will, Section 72 of the above mentioned Act needs to be considered. As per the said provision, a privileged will may be revoked by:
By the testator by an unprivileged will or codicil.
By any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged will.
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.
Also, it needs to be stated that for the revocation of a privileged will or codicil by an act accompanied by such formalities as would be sufficient to give validity to a privileged will, it is not necessary that the testator should at the time of doing that act be in a situation which entitles him to make a privileged will.
Now, an interesting question that arises here is whether a will that has been revoked can be eventually revived later on. The answer is no. No unprivileged will or codicil, nor any part thereof, which has been revoked in any manner, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in a manner as required, and showing an intention to revive the same.
When any will or codicil, which has been partly revoked and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary is shown by the will or codicil.
In a nutshell, a will can be revoked n-number of times by the testator during his lifetime. But a will once revoked cannot be revived except by the re-execution of the same.
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