“Law Of Wills”- Questions & Answers By Justice V Ramkumar [Part-V]

Ans.   If the testator who is not married, marries after making the will, then by operation of law, the will stands revoked. This is, however, applicable only in the case of Indian Christians including Anglo Indians, Parsis, Jews etc. The above provision is not applicable in the case of Wills executed by a Hindu, Buddhist, Sikh or Jaina in view of the statutory exception carved out in the legal provision to be adverted to later.

NOTE BY VRK: It may, however, be noticed that even though as per Section 70 of the Indian Succession Act, 1925, if the testator after executing a Will, marries, such marriage automatically brings about a revocation of the Will, the said provision has no application in the case of Wills executed by a Hindu, Buddhist, Sikh or Jaina in view of Restriction No: 4 of Schedule III read with Section 57 of the said Act. Hence, marriage by the testator does not bring about a revocation of the Will executed by a Hindu, Buddhist, Sikh or Jain.

Q.22 Is a “Will” a compulsorily registrable document ?

Ans. No. Registration of a will, which is optional under the provisions of the Registration Act, 1908, does not make it more effective. (Vide para 20 of Suraj Lamp and Industries Private Limited (2) v. State of Haryana (2012) 1 SCC 656 – 3 Judges - R. V. Raveendran, A. K. Patnaik, H. L. Gokhale - JJ).

Q.23 What are the different kinds of “Will” ?

Ans. Different types of Wills can now be seen.

1. Duplicate Will - A Will executed in duplicate originals by a testator who retains one copy and gives the second copy to another person. The rules applicable to wills apply to both Wills and upon application for probate, both copies must be tendered into the registry of the Probate Court.

2. Double Will - This is a testamentary instrument executed by two persons and giving the property of one dying first to the survivor or giving their separate property to survivor for life and then to third persons.

3. Holograph/holographic Will - This is a handwritten Will by the testator. Also termed “olographic Will”. For decision on holograph Will, Vide Ramaswami v. Muttuswami ILR 15 Madras 380 – Sathasivam – J. In Ajit Chandra Majumdar v. Akhil Chandra Majumdar AIR 1960 Cal. 551 - P. B. Mukharji, H. Bose – JJ, it was observed as follows:-

“The whole of this Will was written in the hand by the testator himself in English the handwriting is clear and firm. The law makes a great presumption in favour of the genuineness of a holograph Will for the very good reason that the mind of the testator in physically writing out his own Will is more apparent in a holograph Will than where his signature alone appears to either a typed script or to a script written by somebody else.”

4. Joint Will -   This is a testamentary instrument executed by two or more persons pursuant to their common intention for disposing of their several interest in property owned by them in common or their separate property treated as a common fund in favour of the devisee.

A joint Will is a Will made by two or more persons putting down their testamentary wishes and intentions in one document which complies with the formal requirements. It takes effect as the separate Wills of the persons who have made it. Such a Will which is one disposition dealing with the properties of more than one testator is inconvenient but appropriate where used to exercise a joint power of appointment or where it is intended to make mutual Wills. It takes effect as the separate Wills of the persons who have made it. It is generally useful only where the parties wish to make a mutual Will and where a joint power of appointment is given to the parties.

(Vide –

• Narayanan v. Sankunni 1954 KLT 197 = 1954 KHC 94 – Govinda Pillai, Joseph - JJ;
• Para 11 & 12 of Kochu Govindan Kaimal v. Lakshmi Amma AIR 1959 SC 71 = 1959 KHC 352 – 3 Judges – Venkatarama Aiyar, Gajendragadkar, A. K. Sarkar - JJ;
• Mary v. Thomas ILR 1970 (1) Kerala 406 – Raghavan, Unni Krishna Kurupp - JJ;
• V. Sarada and Others v. K. V. Narayana Menon and Others AIR 1989 Kerala 155 = 1987 KLJ 606 = 1987 KHC 8 Vargheses Kalliath - J;
• Kesavan Ananda Kumar v. Nangali Amma 1994 (1) KLT 927 – M. M. Pareed Pillay - J;
• Princelal C v. G.Presanna Kumari and Others ILR 2009 (3) Kerala 221 = 2009 KHC 636 -VRK-J;
• Narayani v. Sreedharan (2011) 4 KHC 321 = AIR 2012 Kerala 72 – M. Sasidharan Nambiar - J;

• Dilharshankar C. Bhachech v. Controller of a State Duty, Ahmedabad (1986) 1 SCC 701 = AIR 1986 SC 1707 – V. D. Tulzapurkar, Sabyasachi Mukherji - JJ;
• Palanisami K.S. (Dr.) v. Hindu Community in Generaland Citizens of Gobichettipalayam (2017) 13 SCC 15 = AIR 2017 SC 1473 – A. K. Sikri, Ashok Bhushan - JJ;
• Smitha K. S. v. Devaki 2020 (2) KHC 42 - Sathish Nainan – J;
• George P. John v. Alex P. John 2020 (6) KHC 524 (Kerala) Devan Ramachandran – J;
• Prabhakumari v. Mohanarajan 2021 (4) KHC 514 – N. Anil Kumar – J.

(See also the Law of Wills by Mantha Ramamurti – 9^th Edition (2013), Page 1508, Note 64).

5. Mutual Will - Mutual Will is a Will made by two or more persons pursuant to an agreement between them to make the Wills and not to revoke them without the consent of the other. By such Will the testators make mutual or reciprocal provisions in favour of each other by providing that the property of one of them dying first shall go to the survivor or survivors. Executants fill the role of both “testator” and “legatee” towards each other conferring reciprocal benefits to each other, providing that the property of one dying first shall go to the survivor or survivors. Before the death of the testators the Wills can be revoked by mutual agreements without which there may be an action for breach. These Wills usually makes provisions for the other party on substantially similar terms. Mutual Wills are commonly made between husbands and wives, although they are not restricted to spouses only. A fundamental requirement of mutual Wills is that they must be Wills made in pursuance of their prior agreement providing inter alia not to revoke the Wills without the consent of the other testator. The parties must agree that the survivor will be bound by the agreement. Therefore, once one party dies and only one party remains, the surviving party cannot revoke the Will. Such a will is also called “reciprocal will”, “counter will”, “double will” or “mutual testament”. Even though the law of Wills provides that Wills can be revoked, a mutual Will is irrevocable due to the agreement of the parties. In case a mutual Will is revoked, the party revoking the Will can be liable for breach of contract and breach of trust. Upon the death of one party, a trust arises in favour of the beneficiaries and in spite of the fact that a new Will is effective in vesting the property in the new executor, such executor holds the property on trust for the beneficiaries appointed by the mutual Wills. Although the agreement not to revoke can be made orally or in writing on a separate piece of document, it is advisable to have it recited in the Will itself in order to avoid problems with proof. Further, a recitation in the Will itself will make it easier for the beneficiaries, upon the death of the testator dying first, to notice that they are benefiting under a mutual Will. Without such a recitation, the beneficiaries may never know of their position if the surviving testator were to make a new Will with no reference to the revoked mutual Will. The agreement not to revoke without the consent of the other testator must be strictly proved.

(Vide –

• Para 13 of Kochu Govindan Kaimal v. Lakshmi Amma AIR 1959 SC 71 – 3 Judges – Venkatarama Aiyar, Gajendragadkar, A. K. Sarkar - JJ;
• Komancheri Madhavan Nair v. K. Ravunni Nair 1985 KLJ 608 = 1985 KHC 376 – K. S. Paripoornan - J;
• Para 41 of Dilharshankar C. Bhachech v. Controller of a State Duty, Ahmedabad (1986) 1 SCC 701 = AIR 1986 SC 1707 - V. D. Tulzapurkar, Sabyasachi Mukherji - JJ;

• Meenakshikutty v. Nirmala 2020 (3) KLT 109 = 2020 KHC 3120 (Kerala) – P. B. Suresh Kumar – J;
• Prabhakumari v. Mohanarajan 2021 (4) KHC 514 – N. Anil Kumar – J;

(See also the Law of Wills by Mantha Ramamurti – 9^th Edition (2013), Page 1508, Note 63).

Even when the Will recites that the property is being enjoyed absolutely by the husband and wife with right of alienation, if the husband alone is the title holder, the wife cannot exercise any right of alienation. (Vide Smitha K.S. v. Devaki 2020 (2) KLT 431 = 2020 (2) KHC 42 = ILR 2020 (2) Ker. 49 – Sathish Nainan - J).

6. Mystic Will -     Is a secret Will signed by the testator, sealed and delivered to a notary, Registrar or other appointed public officer in the presence of witnesses accompanied by the testator’s declaration that it is a valid Will.

7. Nuncupative Will - An oral Will made in extremis i.e. in contemplation of imminent death especially from a recent injury. Such Wills are usually privileged wills executed by soldiers, airmen, mariners etc. Such oral Wills can be made by Muslims also.

8. Prenuptial Will - A Will executed before marriage and at common law the subsequent marriage of the testator would revoke the will.

9. Postnuptial Will - A Will executed after marriage.

10. Parliamentary Will - This is used to cover a case where advancements are brought into hotchpot on distribution of the estate of an intestate.

11. Unprivileged Will -This is the most common testamentary instrument executed by persons other than those covered by the next category (privileged Will) falling under Sections 65 and 66 of the Indian Succession Act, 1925. In fact, almost all other earlier categories of Wills come under this category. Execution and attestation of an unprivileged Will are governed by Section 63 of the Indian Succession Act, 1925. Section 68 of the Indian Evidence Act enjoins strict proof of such Wills.

12. Privileged Will - A Will executed by a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged or a mariner being at sea and who has completed 18 years. (vide Section 65 of the Indian Succession Act) The mode of execution of such a Will is provided in Section 66 of the Indian Succession Act.

Sections 65 and 66 of the Indian Succession Act, 1925, read as follows:-

“Section 65: Privileged Wills - Any soldier being employed in an expedition or engaged in actual warfare, 31[or an airman so employed or engaged,] or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a Will made in the manner provided in Section 66. Such Wills are called privileged Wills.

Illustrations

(i) A, a medical officer attached to a regiment is actually employed in an expedition. He is a soldier actually employed in an expedition, and can make a privileged Will.

(ii) A is at sea in a merchant-ship of which he is the purser. He is a mariner, and, being at sea, can make a privileged Will.

(iii) A, a soldier service in the field against insurgents, is a soldier engaged in actual warfare, and as such can make a privileged Will.

• A, a mariner of a ship, in the course of a voyage, is temporarily on shore while she is lying in harbour. He is, for the purposes of this section, a mariner at sea, and can make a privileged Will.

• A, an admiral who commands a naval force, but who lives on shore, and only occasionally goes on board his ship, is not considered as at sea, and cannot make a privileged Will.
• A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier, and can make a privileged Will.”

Section 66: Mode of making, and rules for executing, privileged Wills - (1) Privileged Wills may be in writing, or may be made by word of mouth.

• The execution of privileged Wills shall be governed by the following rules:-
• The Will may be written wholly by the testator, with his own hand. In such case it need not be signed or attested.
• It may be written wholly or in part by another person, and signed by the testator. In such case it need not be attested.
• If the instrument purporting to be a Will is written wholly or in part by another person and is not signed by the testator, it shall be deemed to be his Will, if it is shown that it was written by the testator's directions or that he recognised it as his Will.
• If it appears on the face of the instrument that the execution of it in the manner intended by the testator was not completed, the instrument shall not, by reason of that circumstance, be invalid, provided that his non-execution of it can be reasonably ascribed to some cause other than the abandonment of the testamentary intentions expressed in the instrument.
• If the soldier, airman or mariner has written instructions for the preparation of his Will, but has died before it could be prepared and executed such instructions shall be considered to constitute his Will.

• If the soldier, airman or mariner has, in the presence of two witnesses, given verbal instructions for the preparation of his Will, and they have been reduced into writing in his lifetime, but he has died before the instrument could be prepared and executed, such instructions shall be considered to constitute his Will, although they may not have been reduced into writing in his presence, nor read over to him.

• The soldier, airman or mariner may make a Will by word of mouth by declaring his intentions before two witnesses present at the same time.
• A Will made by word of mouth shall be null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged Will.”

Q.24 What are the important Latin maxims applied in connection with Wills and what is their meaning ?

Ans.   1.   Testamentum est voluntatis nostrae justa sentential, de eo quod quis post mortem suam fieri velit. – “A testament is the just expression of our will concerning that which anyone wishes to be done after his death” or “A testament is the legal declaration of a man’s intentions which he wishes to be performed after his death.”

(This maxim gets statutory recognition in the definition of a Will under Section 2 (h) of the Indian Succession Act, 1925.)

2. Testamentum omne morte consummatum. – “Every will is completed by death”.

3. Voluntas facit quod in testamenta scriptum valet. – “The will (intention) of the testator gives validity to what is written in the Will. (testament)”

(This maxim gets statutory recognition in Section 87 of the Succession Act which says that the testator’s intention is to be effectuated as far as possible.)

4. Voluntas testatoris habet interpretationem latam et benignam. – “The will of the testator should receive a broad and liberal interpretation.”

(This maxim gets statutory recognition in Section 87 of the Succession Act which says that the testator’s intention is to be effectuated as far as possible.)