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Report No. 110

Chapter 14

Privileged Wills (Sections 65-66)

I. Privilege: Justification

14.1. Scope.-

Sections 65 and 66 deal with "Privileged wills", that is to say, wills executed by certain persons who are Allowed to execute wills with formalities that are less rigid than those prescribed for ordinary wills. Strictly speaking, the "privilege" is of the persons who are, by the law, given a right to execute a will without undergoing some of the formalities ordinarily required for wills. Broadly stated, the privileged persons (as the law in India stands at present) are members of certain armed forces employed in an expedition or engaged in actual warfare, and manners at sea.

The special provisions as to privileged wills (sections 65-66) are primarily intended to relax the stringent formal requirements for the validity of wills laid down in the Act for the execution of unprivileged wills (sections 63-64). In particular, there is relaxation of the requirement of-

(a) writing,1

(b) Signature,2 and

(c) attestation,3

An oral privileged will, however, has only limited validity in point of its duration, inasmuch as, if the testator, being still alive, has ceased to be entitled to make a privileged will, the will "shall be null" at the expiration of one month after he has so ceased.4

1. Section 66(1) and sections 66(2)(g) and (h).

2. Section 66(2)(a), (c), (d), (e) and (f).

3. Section 66(2)(a) and (b).

4. Section 66(2)(h).

14.2. Necessity constituting a justification.-

These special provisions laid down for armed forces are justified on the ground of necessity. When combat is actually in progress or expected to start at any moment, it is not possible to undergo elaborate testamentary formalities-or, if the formalities have been already commenced,-to complete them. Non-completion of formalities is strikingly illustrated by the situation where a soldier has proceeded to prepare a will but execution of the will in the manner intended by him cannot be completed, by reason of external factors, even though the intention to make a will has not been abandoned.1

This may, for example, happen where the soldier is killed by enemy action before completing the execution of the will. The law takes care of the situation by a special provision of the nature under consideration.

1. Lee Roman Law, 1955, p. 190.

The Indian Succession Act, 1925 Back

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