A will is a revocable instrument as distinguished from a deed. A will of a living man does not come into operation when it is executed but only upon his death. A will is in its nature ambulatory during the makers lifetime and is therefore always revocable so long as the testator is living. The only instance in which a will cannot be revoked is in the case of mutual or joint wills which become irrevocable after the death of one of the makers. In this article, we shall study revocation of will.

Revocation means the official cancellation a decision. According to Section 62 of the Act, 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. The testator’s right to revoke during his lifetime is absolute. It can neither be waived nor restricted.

Revocation of Unprivileged Will:

Revocation of unprivileged Will can be done by two methods: (a) by the operation of law as provided in S. 69 of the Act or (b) by acts of parties (i.e., by another will or codicil, or by some other writing, or by burning, tearing or otherwise destroying). The modes of revocation as prescribed in this section are exhaustive. A mere intention to revoke is no revocation of the will already made. For effective revocation, one of the requirements of this section must be compiled with.

Revocation by Operation of Law:

According to section 69 of the Indian Succession act, 1925, every will shall be revoked by the marriage of the maker, except a will made in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.

Explanation:

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

Section 69 of the Act lays down that if a maker, whether man or woman, of a will marries after making the will, the will is revoked. This is revocation by operation of law. The principle upon which a will is revoked by marriage is that marriage creates such a change in the testator’s condition with new obligations and duties, they raise an inference that the testator would not adhere to will made before the marriage. Every will, whether unprivileged or privileged, is revoked by marriage of the maker.

Exceptions:

(a) Property bequeathed by the executor who is empowered to do so.

(b) When two persons make mutual wills, the marriage of one of them does not revoke the will of the other.

(c) As s.69 does not apply to Hindus, a will made by a Hindu is not revoked by his marriage.

(d) The will of Muslim is not revoked by his marriage (e) There is no revocation where the marriage is void.

Generally, every will made by a testator is revoked by his marriage. This is true whether the testator is a male or a female. This is because the conditions and circumstances of the testator undergo a fundamental change after marriage and hence, the state of affairs which existed when the will was made have changed. It needs to be noted that it is not only the first marriage of the testator but every marriage of his which revokes the will. Even the second and subsequent marriages of the testator would revoke the wills made before marriage.

There are five exceptions to this rule, as follows:

1. The rule does not apply to a Hindu, Buddhist, Sikh or Jain.
2. Similarly, under Mohammedan law, a will made by a Mohammedan is not revoked by his marriage.
3. When a will is made in the exercise of a power of appointment, the testator’s marriage does not revoke the will.
4. When two persons make a mutual will, the marriage of one of them does not revoke the will.
5. There is no revocation when the subsequent “marriage” is itself void.

Revocation By Act of Parties:

According to Section 70 of the Act, 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 herein before 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.

Illustration:

• A has made an unprivileged will. Afterwards, A makes another unprivileged will which purports to revoke the first. This is a revocation. Even it the second will does not expressly mention about the revocation of the earlier will, the legal effect will be that the earlier will stands automatically revoked]
• 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.

Modes of Revocation of Unprivileged Will:

By Another Will or Codicil:

It follows from the ambulatory nature of the will that the last testament shall be operative to the exclusion of previous contrary or inconsistent ones. The testator must have the testamentary capacity at the time of the making of the subsequent will. But the intention to revoke a former will must be clear e.g., when the later instrument contains words of express revocation. A general revocation clause revoking all former wills and codicils is usual in all well drafted wills. An invalid will cannot revoke the earlier valid will. The revoking will must be admitted to probate.

Revocation may be either express (by providing for a revocation clause) or implied. The will containing the revocation clause must itself be valid, and admitted to probate, otherwise, there is no revocation. Where the later instrument contains no words of express revocation but the dispositions made in the later instrument are of such a character as cannot stand with the first, it can be inferred that the testator intended to revoke the first.

In Nawab Sahib Mirza v. Mussammat Umda Khanam, 1892, L. R. 19 Ind. App. 87 case, the Court held that a will, duly executed, cannot be treated as revoked either wholly or partly by a will which is not forthcoming, unless it is proved that the two cannot stand together. It is not enough to show that the later will differ from the earlier, but it is necessary to show that the difference are irreconcilable.

In Campbell v French, 3 Ves. Jr. 321 (1797) case, a testator gave legacies to the grandchildren of his children and, afterwards by a codicil, revoke the legacies, giving as a reason, that the legatees were dead. It was proved that the legatees were not dead. It was held that the legacies were not revoked as the cause of revocation was false.

In Lemage v Goodban, [1865] LR 1 P&D 57 Case, the Court observed that although the maxim is that no man can die with two testaments, the mere fact of making a subsequent will does not necessarily revoke the former ones unless the subsequent will expressly or in effect, revokes all former wills or the two are inconsistent and incapable of standing together.

By Some Writing:

Revocation may be in writing declaring an intention to revoke, and executed in the manner in which an unprivileged will is required to be executed, i.e., the writing must be signed by the testator and attested by two witnesses.

By Burning or Tearing:

The physical destruction may be done by the testator personally or by another person acting in his presence and by his express direction. It is not necessary that the will be totally destroyed. It is sufficient if on the face of the will, there is shown some sign of the physical act of destruction.   The will may be burnt or torn by the testator or by some person in his presence and by his direction, with the intention of revoking the same. To constitute ‘burning’, it is not necessary that the instrument should be consumed; but there must be actual burning of the will to some extent as to destroy the entirety of the will. Thus, if the testator obliterates his own signature or that of the attesting witnesses with the intention of revoking the will or strikes off his signature, that would amount to a complete revocation. The word ‘tearing’ does not mean tearing to pieces, the slightest act of tearing with intent to revoke is sufficient. Obliterating and tearing off the names of the attesting witness is sufficient to revoke the will. There must, in all cases, be the animus revocandi and the act of burning or tearing must be completed.  

Doctrine of Dependent Relative Revocation:

Where the testator’s act of destruction is connected with the making of another will, so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition; and if, for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will remains in full force. Revocation of a will based on a false cause or an illegal cause is null and void.

Otherwise Destroying:

 The words ‘otherwise destroying’ denote modes of destruction ejusdem generis with those described as ‘burning’, ‘tearing’, etc. Cancellation of will is not one of the modes of revocation. The excision of the name of a testator from his will has been held to amount to ‘otherwise destroying’ the will. Revocation of codicil – A codicil means an instrument in relation to a will and forms a part of the will as per definition in s.2. Under the provisions of this section, it is now settled that a codicil is not deemed to be revoked merely by implication of revocation of the will, but the codicil will remain effectual unless it is shown that the testator, while intending to revoke the will, also intended to revoke the codicil as well.

In Brunt v. Brunt, (1873) 3 PandD 37 case, A, whilst delirious, tears up his will into pieces. The pieces are preserved, and on recovering, A is informed of what he had done. A says that he would make a fresh will. A, however, dies without making a fresh will. The Court held that A did not have the necessary animus revocandi when he tore up the will. Hence, the will is not revoked.

In Cheese v Lovejoy, LR 2 P 251 case, A, the testator, draws some lines across his will and writes on the back of it – “This is revoked”. The Court held that the will cannot be said to be revoked under these circumstances. Such a writing should have been signed by the testator and attested by two witnesses.

In Doe v Perkes (1820) 106 ER 740 case, A, being moved with a sudden impulse of passion against a devisee under the will, conceived the intention of cancelling it. So, he tore his will twice through, when his arms were arrested and his anger mitigated by the submission of the devisee. So, he fitted all the pieces together, and said “It is a good job: it is not worse”. The Court held that there is no intention of revocation of will hence there is no revocation of the will in such a case.

In Kharshetji Ratanji Bomanji vs Kekobad S. Khambatta, (1928) 30 BOMLR 473 case, A makes his will and keeps it for safe custody with his Attorneys. Seven years later, he sends for the will and draws two lines on the first page and writes on the top of that page “This will is cancelled” and puts his signature there. The Bombay High Court has held, that in these circumstances the will is not revoked.

Problem 01:

A, who had made an unprivileged will, declares in the presence of two witnesses, “I hereby revoke my will”. Dues this operate as a legal revocation of A’s will?

Solution:

A’s will cannot be said to be legally revoked. A mere oral declaration, even if in the presence of witnesses, does not act as revocation of a written will.

Problem 02:

A, residing at Pune, writes to B, his Solicitor at Mumbai, requesting B to destroy his will. On receiving the letter, B duly destroys the will Caro the will be said to be revoked?

Solution:

As the will was not destroyed in the presence of the testator, it cannot be said to be revoked.

Revocation of Privileged Will:

According to Section 72 of the Act, a privileged will or codicil, may be revoked by the testator by an unprivileged will or codicil, or 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, 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.

Explanation:

In order to 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.

This section lays down the modes for the revocation of a privileged will by acts of the parties

1. By an unprivileged will or codicil.
2. By any act expressing an intention to revoke, accompanied by such formalities as would be sufficient to give validity to a privileged will
3. By burning, tearing or destroying the will by the testator or by some person in his presence and by his direction with the intention to revoke it.

With regard to the situation of the testator at the time of revocation, he can revoke his will while he is employed in an expedition or while he is not on actual military service.

Under Section 69, privileged will get revoked on the marriage of testator.

Conclusion:

According to Section 62 of the Act, 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. If a prior will is revoked by a subsequent will or codicil. the prior will has no operation whatever. The onus to prove that the will was revoked by the testator lies on the person alleging revocation. Section 69 of the Act lays down that if a maker, whether man or woman, of a will marries after making the will, the will is revoked. According to Section 70 of the Act, unprivileged will or codicil can be revoked 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 herein before 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.