By Shantam Sharma and Ritvik Kashyap
Introduction
A Will is a legal document that reflects an individual’s wishes for distributing their assets and property after their death. Its primary purpose is to provide clarity and ensure that the person’s intentions are followed. Revocation also serves to avoid confusion or disputes after the testator’s death, especially when circumstances have changed significantly since the Will was made. It allows the testator to address new family dynamics or changes in their financial status. This article delves into the circumstances when a Will can be revoked.
Circumstances in which a Will can be revoked
A Will remains flexible and can be altered during the testator’s lifetime, as it only takes effect after their death. Unlike a transfer instrument, which conveys ownership during one’s lifetime, a Will serves as a devolution instrument, outlining the distribution of assets after testator’s death. Consequently, it is always subject to revocation as long as the testator is alive. The following are the circumstances in which a Will can be revoked.
- Revocation of a Will by Marriage
- Revocation of Unprivileged Wills or Codicils[2]
- Revocation of Privileged Wills or Codicils[3]
Under Section 69 of the Indian Succession Act, 1925 [1], a Will is automatically revoked if its maker, whether male or female, marries after creating the Will. This revocation occurs by operation of law. The rationale behind this principle is that marriage significantly alters the testator’s circumstances, introducing new responsibilities and obligations. These changes imply that the testator would likely not intend to uphold a Will made before the marriage. This rule applies uniformly to all types of Wills, whether privileged or unprivileged.
There are, however, certain important points to consider:
A Will is revoked not only by the testator’s first marriage but also by any subsequent marriages that occur after the Will is made.
This rule does not extend to individuals practicing the Hindu, Buddhist, Sikh, or Jain religions.
A Will created under the exercise of a power of appointment remains valid and is not affected by the testator’s marriage.
If a subsequent “marriage” is deemed legally void, it does not result in the revocation of an earlier Will.
An unprivileged Will or codicil (a legal document that modifies a Will) can be revoked in several ways:
A. Marriage: The testator’s marriage automatically cancels the Will.
B. Another Will or Codicil: A new Will or codicil can revoke an existing one.
C. Written Declaration: The testator may write a statement clearly expressing the intention to revoke the Will, following the same formal requirements as the original will.
D. Physical Destruction: The testator, or someone acting on their behalf and, in their presence, can destroy the Will (by burning, tearing, etc.) with the intention of revoking it.
A privileged Will (made by individuals in certain circumstances, such as soldiers or sailors) can be revoked through the following methods:
Unprivileged Will or Codicil: A regular Will or codicil can revoke a privileged one.
Act of Revocation with Formalities: The testator can revoke the Will through an act (such as making a new statement of intent) if it meets the formalities required for a privileged Will.
Physical Destruction: Just like with unprivileged Wills, the testator or someone in their presence can destroy the privileged Will with the intention to revoke it.
Case Laws
The Madras High Court in the case of Kuppuswami Raja And Anr. vs Perumal Raja And Ors. [4], held that a testator may revoke their original Will by creating a new one, as the act of drafting a new Will signifies their intention to nullify the previous one.
The Madras High Court in the case of Kuppuswami Raja And Anr. vs Perumal Raja And Ors.[5], held that a testator may revoke their original Will by creating a new one, as the act of drafting a new Will signifies their intention to nullify the previous one.
Conclusion
In conclusion, the revocation of a Will is an essential aspect of estate planning, ensuring that an individual’s final wishes reflect their current circumstances and priorities. As life evolves, changes such as marriage, financial shifts, or family dynamics may prompt the testator to reconsider their previous decisions. By allowing revocation, the law provides the flexibility to update or replace outdated provisions, thereby safeguarding the wishes of the testator.
Ultimately, understanding the process of revocation is crucial in ensuring that a Will continues to serve its intended purpose, reflecting the true intentions of the testator and preventing future disputes or confusion. It is advisable for individuals to regularly review and, if necessary, revoke or update their Wills to match their evolving life circumstances.
[2] Section 70 of Indian Succession Act, 1925, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879&orderno=70&orgactid=AC_CEN_3_20_00058_192539_1523349789879
[3] Section 72 of Indian Succession Act, 1925, available at: https://www.indiacode.nic.in/show-data?abv=CEN&statehandle=123456789/1362&actid=AC_CEN_3_20_00058_192539_1523349789879&orderno=72&orgactid=AC_CEN_3_20_00058_192539_1523349789879
[4] AIR1964MAD291
[5] FAO 182/2006