Procedure of Revocation of Wills under Muslim Law

A will may be revoked either expressly or impliedly. Implied revocation is by implication. Where a will has been revoked by a testator, either expressly or impliedly, the legatee does not get the property bequeathed to him.

Express Revocation:

Revocation of a will is express if the testator makes a statement that he has rescinded the will executed by him. The statement of revocation may either be oral or in writing. But, it must be in clear and unambiguous terms. Destruction of an unregistered will by tearing it off or, by burning it, is also an express revocation as it clearly indicates the testator’s intention to nullify the bequest.

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A testator may also revoke the will expressly by making a statement to that effect before a court of law. Such a statement revokes the will even though the will has not been destroyed. However, a mere denial by the testator of the validity of a bequest made by him, or of the fact of his having made it, does not operate as revocation of the will.

Implied Revocation:

Revocation of a will may also be implied. The testator may not revoke the will expressly but his intention to rescind the will is inferred from his conduct. Where a testator does something in respect of the property bequeathed by him which is violative of his own rights as owner of that property, the testator’s conduct suggests nothing but the revocation of that will. For example, when a testator destroys or transfers the bequeathed property, he himself ceases to be the owner of that property and the will becomes meaningless. According to Hedaya:

“If the testator performs, upon the article he had bequeathed, any act which, when performed on the property of another, is the cause of terminating right of the proprietor such act is a retraction of the bequest.”

It may be stated that where a testator extinguishes his own right in bequeathed property, the legatee’s right to take that property after testator’s death, is also extinguished. For example, where a testator has made a bequest of his goat but subsequently slaughters the same goat, the will of that goat is automatically rescinded.

Similarly, a bequest of a piece of copper is impliedly revoked if the testator subsequently converts it into a pot. Or, where a testator has made a will of a bag of wheat but subsequently converts it into flour, the bequest of the bag of wheat is revoked.

The testator’s right over the bequeathed property is extinguished also where he transfers its ownership to another person during his life. Therefore, where a testator sells or makes a gift of the same property of which he had made a will, the will is impliedly revoked. It is to be noted that the revocation is valid even if the testator re-purchases the same property or repudiates the gift.

Moreover, there is also an implied revocation of a will if the testator makes any substantial addition to the bequeathed property in such a manner that the property cannot be given to the legatee without that addition. For example, a testator makes a will of his plot of land.

Later-on the constructs a building on that plot. The bequest of the plot of land stands revoked because the plot cannot be given in legacy without giving also the subsequent addition i.e. the building.

A subsequent will in favour of another legatee, of the same property which was the subject-matter of an earlier will, also revokes the earlier will. Where a testator makes a will in favour of a legatee X and after sometime makes another will of the same property to another legatee Y, the first will is automatically revoked without any express declaration of revocation because, only the last will prevails.