"wills", "Joint wills" and "Mutual wills" - Indian Laws - General

Meaning of word will - 'Will' has been defined in Section 2(h) to mean- 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. 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. Appointment of a testator and appointment of a trustee stand completely on different footings. [Krishna Kumar Birla vs Rajendra Singh Lodha and ors.- 2008 (3) TMI 741 - SUPREME COURT] Theobald on Wills , twelfth edition, pages 28 and 29, at paras 79 and 80, describes: 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 revocation clause. Mutual wills. -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. Halsbury's Laws of England, 4th edn., Vol. 50, at pages 95 96, paras. 207 208, deals more or less in the same manner about joint will and mutual will. But at page 108, para. 221, it states the law thus: 221. Restrictions by taking a benefit under a 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 may appear from the wills, or may be proved outside the wills, but it is not established by the mere fact that the wills are in identical terms. If no such agreement is shown, each party remains free to revoke his will, if there are separate wills, or to revoke the joint will, so far as it disposes of his property, and the fact that one party has died without revoking the disposition of his property does not prevent the survivor from revoking the disposition which he has made notwithstanding that he has received benefits out of the estate of the deceased party. Even when there is such an agreement and one party has died after departing from it by revoking or altering the will, the survivor having notice of the breach cannot claim to have the later will set aside since the notice gives him the chance of altering the will as regards his own property, and the death of the deceased party is itself sufficient notice for this purpose. If, however, the deceased has stood by the agreement and not revoked or altered his will, the survivor is bound by it, and although probate will be granted of a later will made by him in breach of the agreement, since a court of probate is only concerned with the last will, the personal representatives of the survivor nevertheless hold his estate in trust to give effect to the provisions of the joint will or mutual wills. Jarman on Wills in 8th edn., at pages 42, states the position of mutual wills thus: The fact that a husband and wife have simultaneously made mutual wills, giving each to the other a life interest with similar provisions in remainder, is not in itself evidence of an agreement not to revoke the wills; in the absence of a definite agreement to that effect, there is no implied trust precluding the wife from making a fresh will inconsistent with her former will, even though her husband has died and she has taken the benefits conferred by his will. Although by the mutual wills the wife expressly has refrained from exercising a power of appointment, which her husband had only in default of her exercising it, and he has appointed, the wife can both take the benefit of her husband's will and exercise her power of appointment, unless the language of his will either puts her to her election, or place her in the position of seeking at the same time to approbate and reprobate its provisions. [DILHARSHANKAR C. BHACHECH- 1986 (1) TMI 98 - SUPREME COURT]