Brief About Joint Will / Mutual Will / Living Will By CA Ajay Kumar Agrawal

Section 2(h) of Indian Succession Act, 1925 defines: Will” means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.   A Will therefore, is a legal declaration of the intention to the testator, to be carried out after his death by an executor(the person who disposes of or oversees the settlement of the assets of the deceased person in accordance with the wishes of the deceased testator), with respect to the testator’s moveable or immovable properties. A Will takes effect after the death of testator. Rights and obligations of an executor of a Will arise only then. No right is created in the executor during the life time of the testator.  There are many laws which deal with the concept of ‘Wills’

⇒ Indian Succession Act, 1925

⇒ Hindu Law (Hindus Personal Law)

⇒ Muslim Law (Muslims Personal Law)

⇒ Indian Registration Act, 1908 ‘ 

Section 59 of the Indian Succession Act, 1925 provides as to who can make a will. As per section 59 :-   

“Every person of sound mind not being a minor may dispose of his property by will.”

In accordance with the aforementioned section, for writing a will the testator must have:

  1. Attained the age of majority

  2. Sound mind

The act does not specifically venture into the concepts of joint or mutual wills. There are different types of will like Simple Will, a Testamentary trust will, Living wills and Joint wills.

1. Joint Will’ In Comparison With ‘Other Wills’ :  A Joint Will is a single testamentary instrument constituting or containing the wills of two or more persons, jointly executed by them.  The Hon’ble Supreme Court, in the matter of Kochu Govindan Kaimal & Others vs Thayankoot Thekkot Lakshmi Amma  acknowledged the concept and held that a joint will, though unusual, is not unknown to law. The judgment further placed reliance upon Halsbury's Laws of England, Hailsham's Edition, Vol. 34, p. 17, para. 12, the law is thus stated:

" 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 is not, however, recognised in English law as a single will. It operates on the death of each testator as his will disposing of his own separate property, and is in effect two or more wills ".

Thus 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. Thus Joint will is different from the other wills because it is created and executed by two testators usually a married couple who leave all their property for each other. It means that the testator who dies first, his or her estate would be distributed to the other testator. A will cannot be revoked without the mutual consent of both the testator but when one of the testators dies it can be revoked. The concept of joint will provide that:

⇒ That when one spouse dies, the other testator will inherit everything, and

⇒ When the second spouse dies, everything directly goes to the person in whose favour will is made.

⇒ In Narayani and Anr. v. Sreedharan , Kerala High Court held that:   “A joint Will is a single testamentary instrument constituting or containing the Will of two or more persons based on an agreement to make a conjoint Will. Two or more persons can make a joint Will, which if properly executed by each so far as his property is concerned is as much his Will. That will come into effect on his death.”    Registration of joint will.

2. Mutual Wills :    Mutual wills are wills of two or more persons which are reciprocal in their provisions and executed in pursuance of contract or agreement between two or more persons to dispose of their property to each other or to third persons in the particular mode or manner. Mutual wills as distinct from joint wills are sometimes described as reciprocal wills. In describing a will the adjective mutual or reciprocal is used to emphasise on the board the contract shall element which distinguishes it from a joint will.

The Hon’ble Supreme Court’s judgment in the matter of Kochu Govindan Kaimal (Supra) not only addresses the issue of Joint will but also provides certain observations, thereby distinguishing the same from the Mutual Will. The Hon’ble Supreme Court made following observations:

“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 Mutual Wills are a slightly different concept. Wills are mutual when the testators confer on each other reciprocal benefits, which may be absolute benefits in each other's property, or life interests with the same ultimate disposition of each estate on the death of the survivor. Apparently, a Mutual Will in the strict sense of the term is a Joint Will, but where by agreement or arrangement similar provisions are made by separate Wills, these are also conveniently known as Mutual Wills.  Where there is an agreement not to revoke Mutual Wills and one party dies having stood by the agreement, the survivor is bound by it          

3. Living Will:- In March 2018, the Supreme Court of India,  in Common Cause (A Regd. Society) vs Union Of India  passed a law on the right to die with dignity as a fundamental human right. This was materialized by allowing individuals to make their own LIVING WILL. A Living Will is a legal document that empowers people to express their desire, in advance, on how they want to spend the last days of their life. It is an advanced directive by an individual stating that they not be put on artificial life support, if they slip into an incurable comma in the future. One of the situations in which the Living Will gets activated is when a patient is no longer in a position to communicate his wish due to being in a vegetative state or a coma and a panel of doctors at the hospital, where the patient is, diagnose the condition as being irreversible   . Who can execute the Advance Directive:-

  1. The Advance directive can only be executed by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.

  2. It must be voluntarily executed and without any coercion or inducement or compulsion and after having full knowledge or information.

  3. It should have characteristics of an informed consent given without any undue influence or constraint.

  4. It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity                                        

4. Revocability of Joint and Mutual wills :- A Will, by its nature is a revocable instrument. The testator may revoke a will any time prior to his/her death. However, the freedom of revocability associated with a will in common parlances is restrained in the case of joint and mutual wills. The concept of revocability of the joint and mutual will has been dealt with by Hon’ble Supreme Court in certain pronouncements, which have resulted in laying foundation of certain conditions to be satisfied, before the revocation of the joint or mutual will can be permitted.

⇒ The Hon’ble Supreme Court in the matter of Dilharshankar C. Bhachecha vs The Controller Of Estate Duty 3 while distinguishing the Mutual and Joint wills, laid down certain conditions which need to be satisfied for holding the mutual will irrevocable, held:

Mutual wills, as distinguished from joint wills, are sometimes described as reciprocal wills. In order to render mutual will irrevocable, both the conditions must be concurrently satisfied:

  1. that the surviving testator must have received benefits from the deceased under the mutual will;

  2. the mutual wills should have been executed in pursuance of an agreement that the testator shall not revoke the mutual wills.

> The Hon’ble Supreme Court in 2017, in the matter of Dr. K.S. Palanisami(dead) vs. Hindu Community in General and Citizens of Gobichettipalayam and others further elaborated the concept of revocability of the Joint and Mutual Wills. 

"Joint wills. 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. So a legacy to a legatee who survived the first testator, but predeceased the second, did not lapse. Where a joint will is followed by a separate will which is conditional on a condition that fails, the joint will is not revoked even though the subsequent separate will contains a revocation clause.

5. Procedure :-

A joint will can be executed on plain paper without requiring any stamp duty for execution and registration of will.

The Government fee should be paid.

The testator along with two witnesses has to register the joint will before the Sub-Registrar.

For registering a joint an identity proof such as Aadhar Card, Voter ID card, Passport etc.

 A will cannot be registered online.                                                                                                                                 

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