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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.
(iv) 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.
(v) 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.
(vi) A, a mariner serving on a military expedition, but not being at sea, is considered as a soldier, and can make a privileged will.
COMMENTS
The Will executed by a person, although enlisted and undergoing training, a week before he was actually sent overseas, cannot be accepted as privileged Will; Simpson v. Bennet, AIR 1946 Oudh 73.
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.
(2) The execution of privileged wills shall be governed by the following rules:—
(a) The will may be written wholly by the testator, with his own hand. In such case it need not be signed or attested.
(b) It may be written wholly or in part by another person, and signed by the testator. In such case it need not be attested.
(c) 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.
(d) 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.

(e) 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.


(f) 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.
(g) 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.
(h) 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.


Chapter V - Of the Attestation, Revocation, Alteration and Revival of Wills



67. Effect of gift to attesting witness
A will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting or the wife or husband of such person or any person claiming under either of them.
Explanation —A legatee under a will does not lose his legacy by attesting a codicil which confirms the will.

68. Witness not disqualified by interest or by being executor
No person, by reason of interest in, or of his being an executor of, a will shall be disqualified as a witness to prove the execution of the will or to prove the validity or invalidity thereof.
COMMENTS
In the absence of any evidence, in case signatures are appearing on the document only for the purpose of certifying that he is a scribe or an identifier or a registering officer he is to be considered as such and not an attesting witness. To be regarded as an attesting witness, it must be shown that he had put his signature with the intention and for the purpose of attesting it or certifying of having received from the executant a personal acknowledgement of his signature; Smt. Punni v. Sumer Chand, AIR 1995 HP 74.

69. Revocation of will by testator’s marriage
Every will shall be 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.
Explanation —Where a man is invested with power to determine the disposition of property of which he is not the owner, he is said to have power to appoint such property.

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.
COMMENTS
The testator intended to give properties for religious and charitable purposes. That intention has been reiterated in the last will as well. The bequest to charity under the last will failed only because of section 118 of the Succession Act. Consequent on that if the revocatory clause is given its full effect, it will defeat the intention of the testator. A probate court is not to resort to an interpretation which will patently go to defeat the testator’s wishes. In fact when the testator had in unmistakable terms expressed his intention to bequeath his properties for religious and charitable purposes; Papoo v. Kuruvilla, 1994 (2) KLT 278.

71. Effect of obliteration, interlineation or alteration in unprivileged will
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 hereinbefore is required for the execution of the will:

Provided that the will, as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.



72. Revocation of privileged will or codicil
A privileged will or codicil may be revoked by the testator by an unprivileged will or codicil, or by any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged will, 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.
Explanation — In order to the revocation of a privileged will or codicil by an act accompanied by such formalities as would be sufficient to give validity to a privileged will, it is not necessary that the testator should at the time of doing that act be in a situation which entitles him to make a privileged will.

73. Revival of unprivileged will
(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 manner hereinbefore required, and showing an intention to revive the same.
(2) When any will or codicil, which has been partly revoked and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary is shown by the will or codicil.

Chapter VI - Of the construction of Wills
74. Wording of will

It is not necessary that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom.


COMMENTS
(i) Document styled as settlement deed but reciting the settlee will take property absolutely after the death of settlor and his wife is not a settlement deed or gift but a document of transfer for consideration or a Will; Narsimhan v. Perumal, AIR 1994 NOC 39 (Mad).
(ii) In making of a Will, if technical words are used, then they should be prima facie understood to have been used in the ordinary sense; Lalit Mohan v. Chukkanlal, ILR 24 Cal 834.

(iii) A will must be construed as a whole to give effect to the manifest intention of the testator; Nathu v. Debi Singh, AIR 1966 Punj 226.


(iv) There is no gain saying the proposition that in case there are unambiguous dispositive words in the Will, they should be given full effect consistent with the intention of the testator, and in case any restrictive or qualifying expression is used to circumscribe the enjoyment of the devise so made, then that has to be ignored as being repugnant to the real intention of the deceased; Rajrani Sehgal v. Dr. Parshottam Lal, 46 (1992) DLT 263.

75. Inquiries to determine questions as to object or subject of will
For the purpose of determining questions as to what person or what property is denoted by any words used in a will, a Court shall inquire into every material fact relating to the persons who claim to be interested under such will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact a knowledge of which may conduct to the right application of the words which the testator has used.

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