Attestation , Revocation, Alteration and Revival of Wills

 

Author: Amit Sheoran, Symbiosis Law School, Nagpur

People were worried about their lives after the corona pandemic. Because in Corona, no one was aware that anything could happen at any time. That is why they start thinking that if they die, then what will happen with their property and, as a result, they start making plans. A question arises in our mind after hearing the word will. What is will? It is defined under 2(h) of the Indian Succession Act, 1925. A will is a testamentary document by which a person bequeaths his property in the name of any other person. It will be effective after the death of the testator. The property will devolve on the person in whose favour it is bequeathed after the death of the testator. A will can be changed, revoked, or altered at any point of time after it is made. A will can be written more than once.All wills are revocable at any time during the life of the person and are confidential documents. A will can be attested, revoked, altered, and also revived at any time. The main object of creating a will is to express their wishes about the distribution of their estate after their death.

Now I would like to discuss the attestation, revocation, alteration, and revival of wills. By all these methods, we can nullify the earlier will or amend the will. When we add, remove, or change something in the will, we must do so using an instrument known as a codicil.The main purpose of a codicil is to make any changes or amendments to an already executed will.If the testator wishes to change the names of the executors by adding some other names of legatee or removing some other person from them, then a codicil in addition to the will can be made to do so. But it is necessary that the codicil must be reduced to writing and signed by the testator's themselves, with the attestation of two witnesses. Then the court will act according to the will of the deceased person.

Sections 67 to 73 of the Indian Succession Act of 1925 deal with the attestation, revocation, alteration, and revision of wills.These sections are given as below:

Section 67 talks about the effect of the gift on attesting the witness. This means that if the will can be attested by the person who has interest in the will but the beneficiary person can not attest the will, if the will is attested by the beneficiary person then it will be void. This means that the will can not be attested by the person in whose favour it is made. If the will is attested by the witness then it becomes easy to prove and it will be valid by using the attested person as a witness. The legeete will not lose his legacy in the will if attested the will again or after the changes made in the will and that confirms the will.

Section 68 talks about whether a witness should be disqualified by interest or by being the executor. This means that no any person shall be disqualified as a witness in order to prove the execution of the will or we can say to prove the validity of will by reason of interest in the will or he is being an executor of it.  

Section 69 talks about the revocation of a will by the testator’s marriage. This means that every will shall be revoked by the maker's marriage, except a will made in the exercise of a power of appointment, when the property over which the power of appointment is exercised would not pass to his or her executor or administrator, or to the person entitled in the event of intestacy, in the absence of such appointment.

Where a man is invested with the power to determine the disposition of property of which he is not the owner, he is said to have the power to appoint such property.

Section 70 and 72 both talk about the revocation of an unprivileged will  and privileged will. This means that the unprivileged and privileged will both can be revoked at any time by the testator. He can revoke the will by making any other will with an intention to revoke the first will, by burning, destroying, tearing and it can be done by any other person within the direction of the testator with the intention of revoking the will.

In purpose of revocation of a privileged or unprivileged will or by codicil the above mentioned act under section 70 and 72 are sufficient to give the validity of revoked will. And at the time of doing all these acts the testator should be in position which entitles him to make the privileged or unprivileged will.

For example A made a will in the favour B later on A made another will in favour of C with the intention of revoking the first will.

Section 71 talks about the effect of, interlineations, obliteration or alteration on unprivileged will. This means that any alteration, obliteration or interlineation made in the unprivileged will will be effective in the same way as the will is valid before the alteration made. But all such alteration is executed in the same way as it is necessary for the execution of the will.

If any alteration made in the will then it should be attested by the testator as well as by the witness then it should be notified to the other parties in the written form within stipulated time. If it is not informed to other parties then all the alteration made will be null and void and the earlier will be effective continuously.

Section 73 talks about the revival of unprivileged will.  As per this section no any codicil or unprivileged will can be revoked in any manner that has been revived other then the re-execution of the will and also showing the intention to revive the same.Amd the second thing is that when any will or codicil  is revived that has been revoked partly and afterwards it revoked wholly then such revival shall not extend to so much as it has been revoked before the wholly revocation unless the contrary intention appear in the will. 

There are various ingredients required while creating a will. The ingredients are given as below:

Testator details:- Every will contains the details of the testator which involve name, address, age.

Legal declaration:- A will is the document by which a living person, known as a testator, declares his desire. And such declarations made by the testator will be valid. If the declaration made is illegal by its purpose then it will not be considered a will.

The intention of the testator with respect to his property: There must be the intention of the testator to make a will with respect to his property.

Beneficiary details:-When any will is created then the details of beneficiary shall be mentioned on the will. In case if there are more than one beneficiary, then details of  all must be mentioned necessarily, which may include name, age, address, and relationship of the testator with the beneficiary.

Desire to be carried into effect after his or her death: It must be clearly mentioned on the will that the will take effect after the death of the testator. If any person who makes a will (testator) takes renunciation during his lifetime, then it will not amount to a will. If the document made by the testator desires to partition the property among his children while the testator is alive, then it will not amount to a will ( section 18 of registration Act )

The Guardian of minor: If the testator gives his property to the minor, then he must appoint a guardian for taking care of that property till the minor attains the age of majority.

The Executor of the Will: The will is implemented by the executor of the will after the death of the testator.

Signature and date: The will must contain the date on which day it was made and it must be signed by the testator after the last line of the will in the presence of two witnesses in order to show that this will is made intentionally, in sound mind and without any force. ( section 63 of indian succession act )

Exclusion: The testator cannot give the property in his will that property which is the property of a joint family or ancestral property that has more than one member’s part in that estate.

References:-

Referred statute 

Hindu succession Act, 1956

Indian succession Act, 1925

List of book referred

Paruck The Indian succession Act, ed. S S Subramani & K Kannan ( 9th edition, Butterworths, New Delhi, 2002)

 T.P. Gopalakrishnan’s Law of wills, ( sixth edition, the Law Book Company (P) Ltd., Allahabad, 1998

Sanjiva Row’s, The Indian Succession Act, 1925, ed. Prafulla Pant