JOINT AND MUTUAL WILLS

INTRODUCTION

Quite
often, during a conversation about Wills the topic veers towards Joint Wills
and / or Mutual Wills. Ironically, this is a subject which finds no official recognition
in the Indian Succession Act, 1925, which is the Act governing Wills by most
people in India. In spite of this, it is a very popular subject! Both these
terms are often used interchangeably, but there is a stark difference between
the two. This month, let us examine the meaning of Mutual Wills and Joint Wills
and their salient features.

JOINT WILLS

A
Joint Will, as the name suggests, is a Will which is made jointly by two
persons, say, a husband and his wife. One Will is prepared for the couple in
which the distribution of their joint and even their separate properties is
laid down. It is like two Wills in one. The Will usually provides that on the
death of the husband all properties would go to his wife and vice versa.
It also lays down the distribution of properties once both pass away. The
Supreme Court in Dr. K.S. Palanisami (Dead) vs. Hindu Community in
General and Citizens of Gobichettipalayam and others, 2017 (13) SCC 15
(Palanisami’s case) has defined a Joint Will as follows:

‘A
joint will is a will made by two or more testators contained in a single
document, duly executed by each testator, and disposing either of their
separate properties or of their joint property… It is in effect two or more
wills and it operates on the death of each testator as his will disposing of
his own separate property; on the death of the first to die it is admitted to
probate as his own will and on the death of the survivor, if no fresh will has
been made, it is admitted to probate as the disposition of the property of the
survivor. Joint wills are now rarely, if ever, made.’

In
Kochu Govindan Kaimal & Others vs. Thayankoot Thekkot Lakshmi Amma
and Others, AIR 1959 SC 71, the Apex Court described Joint Wills as
follows:

‘…in
my judgment it is plain on the authorities that there may be a joint will in
the sense that if two people make a bargain to make a joint will, effect may be
given to that document. On the death of the first of those two persons the will
is admitted to probate as a disposition of the property that he possesses. On
the death of the second person, assuming that no fresh will has been made, the
will is admitted to probate as the disposition of the second person’s
property…’

MUTUAL WILLS

A Mutual Will, on the
other hand, is entirely different from a Joint Will (although they appear to be
the same). The Supreme Court in the case of Shiv Nath Prasad vs. State of
West Bengal, (2006) 2 SCC 757 has explained a Mutual Will in detail:

‘…we need to
understand the concept of mutual wills, mutual and reciprocal trusts and secret
trusts. A will on its own terms is inherently revocable during the lifetime of
the testator. However, “mutual wills” and “secret trusts”
are doctrines evolved in equity to overcome the problems of revocability of
wills and to prevent frauds. Mutual wills and secret trusts belong to the same
category of cases. The doctrine of mutual wills is to the effect that where
two individuals agree as to the disposal of their assets and execute mutual
wills in pursuance of the agreement, on the death of the first testator (T1),
the property of the survivor testator (T2), the subject matter of the
agreement, is held on an implied trust for the beneficiary named in the
wills. T2 may alter his / her will because a will is inherently revocable,
but if he / she does so, his / her representative will take the assets subject
to the trust. The rationale for imposing a “constructive trust” in
such circumstances is that equity will not allow T2 to commit a fraud by
going back on her agreement with T1. Since the assets received by T2, on
the death of T1, were bequeathed to T2 on the basis of the agreement not to
revoke the will of T1, it would be a fraud for T2 to take the benefit, while
failing to observe the agreement and equity intervenes to prevent this
fraud. In such cases, the instrument itself is the evidence of the agreement
and he, that dies first, does by his act carry the agreement on his part into
execution. If T2 then refuses, he / she is guilty of fraud, can never unbind
himself / herself and becomes a trustee, of course. For no man shall deceive
another to his prejudice. Such a contract to make corresponding wills in many
cases gets established by the instrument itself as the evidence of the
agreement… In the case of mutual wills generally we have an agreement
between the two testators concerning disposal of their respective properties.
Their mutuality and reciprocity depends on several factors…’

The Supreme Court in
Palanisami’s case has given another view on what constitutes a Mutual
Will:

‘The
term “mutual wills” is used to describe joint or separate wills made as the
result of an agreement between the parties to create irrevocable interests in
favour of ascertainable beneficiaries. The agreement is enforced after the
death of the first to die by means of a constructive trust. There are often
difficulties as to proving the agreement, and as to the nature, scope, and effect of the trust imposed on the estate of the second to die.’

Thus, a Mutual Will
prevents a legatee from taking benefit under the Will in any manner contrary to
the provisions of the Will, i.e., such a Mutual Will cannot be revoked
unilaterally. For example, by way of a Mutual Will a husband bequeaths his
estate to his wife and his wife bequeaths her estate to him. Both of them also
provide that if any of them were to predecease the other, they bequeath all
their property to the wife’s brother. The wife dies and the husband revokes his
Mutual Will bequeathing everything to his niece. Such a revocation would not be
allowed since it would constitute a breach of trust upon the husband who
executed the Will on the understanding that after him and his spouse, the
estate would go as they had agreed earlier.

Mutual Wills can be
and usually are two separate Wills unlike a Joint Will which is always one
Will.

In Dilharshankar
C. Bhachecha vs. The Controller of Estate Duty, Ahmedabad, (1986) 1 SCC 701,
the Court explained the difference between a Joint and a Mutual Will as
follows:

‘…Persons may make
joint wills which are, however, revocable at any time by either of them or by
the survivor. A joint will is looked upon as
the will of each testator, and may be proved on the death of one. But the
survivor will be treated in equity as a trustee of the joint property if there
is a contract not to revoke the will; but the mere fact of the execution of a
joint will is not sufficient to establish a contract not to revoke… The term
mutual wills is used to describe separate documents of a testamentary character
made as the result of an agreement between the parties to create irrevocable
interests in favour of ascertainable beneficiaries. The revocable nature of the
wills under which the interests are created is fully recognised by the Court of
Probate; but in certain circumstances the Court of Equity will protect and
enforce the interests created by the agreement despite the revocation of the
will by one party after the death of the other without having revoked his
will… There must be evidence of an agreement to create interests under the
mutual wills which are intended to be irrevocable after the death of the first to
die…’

A
Mutual Will can also be a Joint Will, in which case it is termed a Joint and
Mutual Will. Mutual Wills may be made either by a Joint Will or by separate
Wills, in pursuance of an agreement that they are not to be revoked. Such an
agreement could appear either in the Will itself or by a separate agreement.

One
of the distinctions between the two terms was explained by the Supreme Court in
Palanisami’s case as follows:

‘A
will is mutual when two testators confer upon each other reciprocal benefits,
as by either of them constituting the other his legatee; that is to say, when
the executants fill the roles of both testator and
legatee towards each other. But where the legatees are distinct from the
testators, there can be no question of a mutual will.’

Thus,
in a Mutual Will, X as a testator would make Y his legatee and Y as a testator
would make X her legatee. Thus, there would be reciprocal benefits on each
other. It is advisable that Mutual Wills should clearly set out the reciprocal
benefits being given and contain an express clause that neither testator can
revoke it unilaterally. During the lifetime of both the testators, they may
jointly decide to revoke a Mutual Will.

ARE SUCH WILLS ADVISABLE?

Personally,
the author prefers that separate Wills are drafted
for couples rather than opting for Joint and / or Mutual Wills. The estate
planning process of a couple could be separate for each partner. There may be
situations such as divorce, remarriage, etc. There may be different interests such
as one may want to bequeath to family while the other may want to donate to
charity. Lastly, obtaining execution of such Wills and obtaining their probate
could be a complicated and sometimes confusing affair. When legal heirs are
anyway grappling with problems on account of the loss of a loved one, why
burden them with one more? That’s why, having a separate Will for each partner
would be the ideal scenario. Even if the Wills are what is popularly known as Mirror
Wills, i.e., each is a reflection of the other.

However,
there is one scenario where a Mutual Will is advisable. If the intent is to
bind a couple to a certain pre-determined pattern of disposition without giving
a chance to wriggle out of this after the demise of one of the partners, then a
Mutual Will achieves this objective. For instance, often
a fear is that after remarriage of one of the partners there could be new
claimants to the joint property of the couple. To address this, a Mutual Will
could be executed where during their lifetime each of the partners could enjoy
the property but once both die, the Will would provide the course of succession
to this property. None of the surviving partners would be in a position to
alter this Mutual Will since reciprocal promises have been constituted which
could only have been altered when both
were alive.

CONCLUSION

An
analysis of the above cases shows that the intention of the testator is
paramount in construing the nature of the Will. The Court adopts an armchair
construction method where it sits in the chair of the testator. Hence, it
is very important that the Will is drafted in a very clear and unambiguous
manner so as to dispel all doubts in the mind of the Court.