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Report No. 110

V. The Formalities

14.21. Section 66.-

We may now resume consideration of the existing sections. Section 66 reads:

"66. (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 cases 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 intension 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."

14.22. Departure from English Law.-

It is unnecessary to discuss at length the contents of this section, as the matters dealt with are mostly matters of detail. But it may be useful to point out that the provision in sub-section (2) clause (h) (under which an oral privileged will becomes null at the expiration of one month after the testator, being still alive, has ceased to be entitled to make a privileged will), is one which, though not found in English law, is a salutary one. In fact, some writers consider that even written privileged wills should cease to be valid one year after the testator has ceased to be entitled to make a privileged will.

14.23. Changes required in section 66 to cover persons affected by calamity.-

It may be mentioned that if the provisions of the Act related to privileged wills are to be extended to persons affected by calamity as recommended by us, section 66 will also require consequential changes.

14.24. Section 66(2) to be amended.-

We have separately recommended1 the insertion of a new section to the effect that a person affected by accident, earthquake, fire, flood, or other similar calamity in circumstances wherein he has a reasonable apprehension of immediate death, may also make a privileged will. This recommendation, if accepted, will expand the scope of privileged wills. In consequence, section 66(2) clauses (e), (f) and (g) should be slightly amended, so as to replace the words "soldier, airman or mariner" by the words "the persons entitled to make a privileged will."

1. See para. 14.20, supra (recommendation to insert section 65A).



The Indian Succession Act, 1925 Back




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