Will is a legal instrument to dispossess one’s property
A Will is a legal declaration of the intention to the testator, to be carried out after his death with respect to the testator’s moveable or immovable properties in accordance with the wishes of the deceased testator. A Will takes effect only after the death of testator.
A Will normally will include the name of an executor who oversees the settlement of the assets of the deceased person after his death as delineated in the Will. The executor of a Will comes into picture after the death of the testator and he has role during the life time of the testator.
A major person with sound mind can dispossess his property by Will.
No law in India speaks of joint or mutual will
The Indian Succession Act, 1925, which defines what a Will is and outlines the characteristics of a testator, keeps silent on the concept of two or more testators coming together and drawing a joint or mutual Will, for the properties they own jointly or separately.
What is a joint or mutual will?
A Joint Will is a single testamentary instrument containing the wills of two or more persons jointly executed by them.
Mutual wills are Wills of two or more persons which are reciprocal in their provisions and executed in pursuance of a contract or agreement between the two or more persons to dispose of their property to each other or to third persons in a particular mode or manner, as the Calcutta High Court states in Krishna Kumar Birla v Rajendra Singh Lodha & Ors.
That means, a Will is a mutual Will when two testators confer upon each other reciprocal benefits, as by either of them constituting the other as his legatee or when the executants fill the roles of both testator and legatee towards each other.
SC’s position in a Joint will
In Krishna Kumar Birla v Rajendra Singh Lodha & Ors, the Calcutta High Court speaks about a joint Will.
A mutual Will becomes irrevocable on the death of one of the testators if the survivor had received benefits under the mutual Will, and that there is a specific contract prohibiting revocation. This happens when the Will takes the form of one single Will rather than two simultaneous Wills.
That means, if the two testators had executed one single mutual Will by using the expressions “our property” “our present wishes” “our Will” and such similar expressions, it shows the intention of the testators that the Will cannot be revoked except by mutual consent.
If one of the testators dies, such a possibility of revocation by mutual consent ceases to exist.
When a joint Will becomes a mutual Will?
A joint Will becomes a mutual will when two parents dispose of the property to the children while taking life interest to the surviving parent.
Distinction between a mutual will and a joint Will is brought out by the SC in Kochu Govindan Kaimal & Others vs Thayankoot Thekkot Lakshmi Amma [ AIR 1959 SC 71].
A joint Will is a Will made by two or more testators contained in a single document, duly executed by each testator, disposing either of their separate properties, or of their joint property. It operates on the death of each testator as his individual will disposing of his own separate property, and is in effect two or more Wills.
A Will is a mutual Will when two testators confer upon each other reciprocal benefits by either of them constituting the other his/her legatee. That means, the executants take the roles of both testator and the legatee towards each other. When the legatees are distinct from the testators then that is a joint Will but not a mutual Will. A joint Will can be revoked if benefit is to the survivor and if there was a prior agreement for revocation.
Conclusion
A Joint will is revocable if the joint Will is a combined Will of two or more individuals and the survivor has received no benefits from the deceased testator, as inferred from the facts and circumstances surrounding the Will.
However, a mutual Will becomes irrevocable on the death of one of the testators if the survivor had received benefits under the mutual Will, and that there is a specific contract prohibiting its revocation.
