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

“70: Revocation of unprivileged Will or codicil 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 hereinbefore 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.

Illustrations

(i) A has made an unprivileged Will. Afterwards, A makes another unprivileged Will which purports to revoke the first. This is a revocation.
(ii) 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”.

(ii) some other writing containing a declaration of an intention to revoke and observing the formalities for the execution of an unprivileged Will.

(c) By destruction

(i) by burning, or
(ii) by tearing, or
(iii) by otherwise destroying the Will.

If a subsequent Will or codicil is partly inconsistent with one executed earlier, then such later instrument can be understood to revoke the former only to the extent it is inconsistent.

But if two inconsistent Wills are to be found of the same date or without any date, then both are to be treated as void unless, after a struggle to reconcile between the two for establishing posteriority of the execution, the Court succeeds in finding out the relative periods of execution.

But if the second Will by which the first Will is revoked partially is subsequently cancelled by the testator, the revoked portion of the first Will will not be revived by such cancellation. (Vide Surendra v. Sivadas AIR 1922 Cal. 182 - A Mookerjee, Cuming - JJ).

There cannot be revocation of a Will by necessary implication. A Will can be revoked only by a document or some writing executed in the same manner as a Will or by tearing or by destroying the Will. (Vide Tadikonda Koteswara Rao v. Vallavarapu Venkateswara Rao 1996 (2) Andhra W.R. 29 (A.P.)- Krishna Saran Shrivastav – JJ.)

Striking off a particular clause or the name of the legatee is revocation pro tanto (to that extent) only.

Mere writing of the word “cancelled”, drawing red line or scratching the signature etc. are not sufficient to bring about revocation under Section 70 of the Act. (Vide Raveendran Nair v. Valsala Devi 2001 (3) KLT SN 84 (DB).

If the destruction of the Will is by a third person other than the testator, in order to operate as revocation, such destruction must be both in the presence of and on the direction of the testator. Hence, by necessary implication the testator cannot revoke his Will by authorizing any person to destroy the same after his death.

• Kaikhushru Jehangir v. Bai Bachubai Jehangir and Others AIR 1951 Bombay 339 – Bhagwati – J – “14. Under the circumstances which I have stated above, I have come to the conclusion that the revocation of the third codicil by the endorsement made at the foot thereof by the testatrix on 27-3-1947, bad the effect of revoking that codicil & that codicil only & not the second will & the second codicil thereto which were revived & re-published by the execution of that codicil on 31-1-1947, & brought down to that date 31-1-1947. On this conclusion of mine, there would be no intestacy but the second will & the second codicil, thereto would be the testamentary dispositions of the testatrix entitled to probate.

15. I cannot, however, rest content with merely recording this conclusion of mine. The matter is likely to go to a higher tribunal having regard to the stake between the parties & I therefore deem it necessary to record my opinion as regards the other argument based on the doc-trine of dependent relative revocation which has been addressed to me by counsel for deft. 1. The argument is this. At the time when the testatrix revoked the third codicil by making the endorsement at the foot thereof on 27-3-1947, she had no animo revocandi so far as the second will & the second codicil thereto were concerned, & if that was going to be the effect, the Ct. should hold by reason of the operation of this doctrine of dependent relative revocation that the revocation of th& third codicil itself was inoperative. The doctrine of dependent relative revocation has been thus enunciated in Halsbury's Laws of England, vol. XXXIV p. 89, Para. 127. The position would be more clear if I also quoted a passage from Para. 126 on the preceding page :

"Revocation by destruction, or obliteration, or by subsequent will or codicil, may be conditional, & if the condition in question is unfulfilled the revocation fails & the will, as made before such revocation, remains operative."

Then Para. 127 :

(Vide paras 14 and 15)

• Thressia v. Lonappan Mathew 1956 KLT 469 = 1956 KHC 103 = AIR 1956 TC 186 (FB) – Joseph Vithayathil, Varadaraja Iyengar -JJ;
• Lakshmi v. Sankaran 1960 KLT SN P.19 - ;

• Antony v. Mathew 1961 KLT 500 = AIR 1962 Ker. 48 (DB) - M. S. Menon, T. K. Joseph – JJ;

• David Tharakan v. Lilly Jacob 1992 (2) KLT 426 - Sreedharan - J;

• Papoo v. Kuruvilla 1994 (2) KLT 278 – K. Sreedharan - J;

• Vadakkayil Gopalan v. Vadakkayil Paru 2013 (3) KLT 69 = 2013 (2) KHC 902 (Kerala - DB) - Thottathil B. Radhakrishnan, B. Kemal Pasha - JJ.

ii. Cases where the testator has revoked a prior Will because he mistakenly believes that he has made a subsequent valid Will.
iii. Cases where the testator has revoked a prior Will because he mistakenly believes that the law of intestacy will effects his wishes.

“Probate” means the copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator”.

A probate perfects the title of the executor and can only be granted to him. Probate of a Will when granted establishes the Will from the death of the testator and renders valid all intermediate acts of the executor as such. It is conclusive evidence of the validity and of due execution of the Will and the testamentary capacity of the testator.