Page 233 - DMGT515_PERSONAL_FINANCIAL_PLANNING

Personal Financial Planning

Notes Every Will is 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.
This rule as to revocation of a Will by marriage, does not, however, apply to Wills and
codicils executed by Hindus, Buddhists, Sikhs or Jains.
An unprivileged Will which has once been validly revoked cannot be received otherwise
than by the re – execution thereon with the prescribed formalities, or by a codicil executed
with such formalities and showing an intention to revive the same. When a Will or a
codicil, which has been partly revoked and afterwards wholly revoked, such revival
cannot extend to so much thereof as has been revoked before the revocation of the whole
thereof, unless and intention to the contrary is shown by the Will or codicil.
It has already been stated that in the case of Hindus, Buddhists, Sikhs and Jains a Will could
validly be made orally and no formalities for the execution of a Will are required. This
rule, however, did not apply to Wills made by Hindu, Buddhists, Sikhs or Jains, on or after
the 1st of September, 1870, within the territories which were subject to the Provincial
Government of Bengal or in the local limits of the ordinary civil jurisdiction of the High
Courts of Judicature at Madras and Bombay, and also, to all such Wills and codicils made
outside those territories or limits so far as they related to immovable property situated
within these territories or limits. The execution of such Wills was previously regulated by
the Hindu Wills Act (XXI of 1870). Except in the cases mentioned in that Act, oral Wills
could be made by person’s professing the Hindu, Buddhist, and Sikh and Jain religions. A
question, however, arises whether the Indian Succession Act, 1925 has the effect of depriving
such persons of the privilege of making oral Wills, or whether the provisions of section 63
of the Act do not merely provide for the formalities which must be observed, if any of such
persons chooses to ‘execute’ a Will, i.e., chooses to reduce his testamentary dispositions to
writing. It will be observed that section 63 of the Act provides for the manner of ‘execution’
of unprivileged Wills, it does not deal with the question of the ‘making’ of such Wills.

That the Act seems to make a distinction between the ‘execution’ and the ‘making’ of Wills,
will appear from a comparison of the phraseology of sections 63 and 66 of the Indian
Succession Act, 1925. While section 63 refers to the ‘execution’ of unprivileged Wills,
section 63 refers to the ‘execution’ of unprivileged Wills, section 66 prescribes the ‘mode of
making’ and rules for executing Privileged Wills’. A distinction, therefore, seems to be
contemplate between the ‘execution’ and the ‘making’ of a Will. The former expression
apparently applies to cases where the Will is to be reduced to writing, and the expression
‘making of a Will’ includes the execution of a Will and also an oral declaration by the
testator of his testamentary disposition of his estate, if such declaration legally amounts to
a Will. The matter is a debatable one, and no definite opinion, therefore, need be expressed
on it at this stage.
2. Conditional or Contingent Wills: A Will may be expressed to take effect only in the event
of the happening of some contingency or condition, and if the contingency does not
happen or the condition fails, the Will is not be legally enforceable. Accordingly, where A
executes a Will to be operative for a particular year, i.e., if he dies within that year. A lives
for more years, after that years. Since A does not express an intention that the Will be
subsisting even intestate. A Conditional Will is invalid if the condition imposed is invalid
or contrary to law.
3. Joint Wills: A Joint Will is a testamentary instrument whereby two or more persons agree
to make a conjoint Will. Where a Will is joint and is intended to take effect after the death
of both, it will not be enforceable during the life– time of either. Joint Wills are revocable

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