Provisions Related to Alteration, Revocation, Revival of Will

Introduction

A Will is a legal instrument through which a person (called a testator) expresses his wishes regarding the distribution of his property and assets after his death. It is governed by the Indian Succession Act, 1925, which lays down the procedure for its execution, alteration, revocation, and revival. The concept of Will provides testamentary freedom, allowing individuals to determine how their property will devolve.

Alteration, revocation, and revival are significant aspects of testamentary disposition, as they reflect the dynamic and often changing intentions of the testator. However, a Will is not permanent in nature and may be altered, revoked, or even revived during the testator’s lifetime. These changes must be made carefully and in accordance with statutory requirements to be valid.

Alteration of Will

1. Meaning of Alteration

Alteration of a Will refers to any change or modification made in the original Will by the testator (person who creates his will) during his lifetime after it’s execution. Such changes may involve adding new clauses, removing existing ones, or replacing certain provisions in the Will. For an alteration to a will to be legally valid and effective, it generally must be performed with the same formalities as the original will, including the testator’s signature and the signatures of two witnesses.

2. Legal Provisions – Section 71, Indian Succession Act, 1925

“No obliteration, interlineation or other alteration made in any unprivileged Will after the execution thereof shall have any effect, except so far as the words or meaning of the Will have been thereby rendered illegible or undiscernible, unless such alteration has been executed in like manner as is hereinbefore required for the execution of the Will.”

Key Aspects of Alteration of a Will:

a) Presumption of Invalidity: Alterations made to a will are generally presumed to be made after the execution  of will has been done, therefore making them invalid. These alterations can be considered and made valid only after these alterations are duly attested by both the testator and two witnesses in the same manner as it was done on day of execution of will.

b) Attestation Required for Validity: For an alteration to be valid in law, it requires the testator’s signature and the signatures of two witnesses as done on day of it’s execution. These attestations using a signature can be made in the margin along with the alteration, or at the bottom of the will.

c) Impact of Invalid Alterations: If an alteration is invalid and completely obliterates the original words, it may be treated as a blank space. However, if the original words are still legible, they generally remain effective.

d) Date of Alteration: It is advisable that the date of alteration be mentioned to avoid confusion.

3. Judicial Interpretation

In Kavita Kanwar v. Pamela Mehta & Ors., (2020) 13 SCC 172, the Supreme Court held that an alteration not properly executed and attested cannot be treated as valid. The original Will would stand unaffected by such improper alterations.

4. Alternative to Alteration:

For substantial changes to a will, the most straightforward and recommended method is to revoke the existing will and create a new one that explicitly revokes all prior wills and codicils. Another way to amend a Will is by executing a codicil—a separate legal document used to alter, clarify, or supplement the terms of an existing Will.

Revocation of Will

1. Meaning of Revocation

Revocation of a Will refers to the cancellation or annulment of a Will by the testator during his lifetime. This means, that the testator renders the will to be invalid in eyes of law. This may occur explicitly through a written document or impliedly through acts such as destruction.

Since the Will operates only after the death of the testator, he has full liberty to revoke it during his lifetime. This power is essential to ensure testamentary freedom remains dynamic and flexible.

2. Legal Provisions – Section 70, Indian Succession Act, 1925

“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.”

Modes of Revocation of a will:

1. By Marriage (Section 69): Marriage automatically revokes a Will, unless made in exercise of a power of appointment, such provision is not applicable to Hindus, Buddhists, Sikhs, or Jains (as per Section 57).

2. By Execution of a New Will or Codicil: A subsequent Will impliedly revokes the earlier one, wholly or partially, based on the inconsistency of terms.A codicil can also be used to revoke particular provisions of the original Will.

3. By Express Revocation in Writing: A Revocation must be executed and attested in the same manner as a Will. It need not be registered, but must clearly reflect the intention to revoke.

4. By Physical Destruction: There must be an act done by the testator himself, or in his presence and by his direction with intention to revoke the will. The act includes burning, tearing, obliterating.

Revocation under Muslim Law

Muslims can revoke their Wills at any time, either orally or by subsequent disposition of the same property. The doctrine of abrogation applies more liberally in Muslim personal law than under the Succession Act.

4. Case Law

Durga Prashad v. Debi Charan, AIR 1979 SC 472

The Supreme Court stated that a will can be revoked at any time by the testator in any form prescribed by law. But such action of revocation should be in accordance with his intention to revoke the will. Just because the will cannot be found on death does not amount to will being revoked. It’s revocation will depend on the circumstances of the case.

Revival of Will

1. Meaning of Revival

Revival means bringing back into effect a Will that was previously revoked or superseded. Revival is not automatic and must be done through specific methods recognized under the law.

Revival refers to the process of bringing a previously revoked Will back into legal effect.This may happen, for instance, when a second Will revokes the first, and later the second is destroyed or declared invalid.

2. Legal Provisions – Section 72, Indian Succession Act, 1925

“(1) 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 the manner hereinbefore required, and showing an intention to revive the same. ”

Key Points:

• If a later Will revokes an earlier Will and is then destroyed or found invalid, the earlier Will does not automatically come into force. It must be revived through explicit action.

• Revival must be done by: a) re-executing the original Will afresh in accordance with legal formalities, or b) by a codicil showing intention to revive.

• The earlier Will is treated as non-existent unless specifically brought back into force.

Codicil: Role in Alteration and Revival

A codicil is a supplement or appendix to a Will, made to explain, modify, or add to the provisions of the original Will. It is governed under Section 2(b) of the Indian Succession Act. It is a legal instrument that allows modifications to an existing Will without the need to draft a completely new one. It must also be executed and attested like a Will and become part of the Will once validly made.

It is to be noted that Codicils are not effective if the Will it refers to has been revoked. It can be used to change or amend the terms of a Will, revoke the entire Will or specific parts of it, or restore a previously revoked Will to effect.

Comparison of the Three Concepts

VI. Practical Considerations and Precautions

1. Maintain Clarity: Any alteration made to the will should be clearly marked and signed by the testator and witnesses so as to show the intention of the testator to modify the will.

2. Avoid Conflicting Wills: A later Will should clearly mention revocation of earlier Wills to avoid ambiguity.

3. Secure Custody: Safeguard both the original and codicil to prevent tampering of will and preventing any person from having wrongful gains.

4. Registration: Though not mandatory, registration helps avoid disputes that may later arise due to lack of evidence of the will being truthful.

5. Professional Assistance: A lawyer should be consulted for drafting or modifying Wills to ensure legal compliance.

VII. Conclusion

The Indian Succession Act, of 1925 lays down detailed rules concerning the modification, cancellation, and revalidation of Wills. These rules aim to protect an individual’s right to decide how their property should be distributed after death, while also ensuring strict formalities to avoid fraud or disputes.

A testator is free to alter or revoke their Will as many times as they wish during their lifetime. However, the law insists that such actions must follow certain procedures to confirm the true intent behind the changes. Courts have consistently focused on the importance of the testator’s intention, adherence to legal formalities, and maintaining clarity.

By fully understanding and properly following these legal requirements, a person can make sure their wishes regarding property distribution are upheld and legally valid.

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