Why should one set out terms clearly in wills?

Joint wills are made by two or more tes­ta­tors and treated as the in­di­vid­ual will of each one. Mu­tual wills, if spec­i­fied other­wise, can­not be re­voked

HT Estates - - HTESTATES - Su­nil Tyagi

Awill is an in­stru­ment b y wh i c h a p e r s o n makes a dis­po­si­tion of his mov­able and im­move­able prop­er­ties, which will take ef­fect af­ter his death. The In­dian Suc­ces­sion Act, 1925, en­lists the var­i­ous re­quire­ments for writ­ing a valid will. Though there is no pre­scribed for­mat for the word­ings to be used for writ­ing a will, the words should be such that the in­ten­tion of the per­son writ­ing the will (tes­ta­tor) can be as­cer­tained clearly. This will en­sure that the tes­ta­tor’s wishes are car­ried into ef­fect fully and his prop­er­ties are ac­cord­ingly distributed af­ter his death.

Al­though there is no cod­i­fied law re­gard­ing joint and mu­tual wills, there have been sev­eral in­stances where the courts have in­ter­preted the words of the will and have cat­e­gorised the will in ques­tion as a joint will or a mu­tual will.

Joint will

In var­i­ous judg­ments by the high courts and the Hon’ble Supreme Court, a joint will has been de­scribed as a will which is made by two or more tes­ta­tors as a sin­gle doc­u­ment. Each tes­ta­tor may dis­pose of ei­ther of the prop­er­ties solely owned by him and/or prop­er­ties jointly owned by him with other tes­ta­tors through a sin­gle joint will. Joint wills can be re­voked at any time by ei­ther of the tes­ta­tors so far as it ap­plies to each tes­ta­tor and his prop­er­ties un­less the tes­ta­tors spec­ify other­wise. If the tes­ta­tors spec­ify that nei­ther of them is en­ti­tled to re­voke a joint will then it can­not be var­ied, re­voked or mod­i­fied later. To put it sim­ply, a joint will is in ef­fect a sin­gle in­stru­ment whereby two or more per­sons give ef­fect to their in­ten­tions re­gard­ing the man­ner in which their re­spec­tive prop­er­ties are to be be­queathed af­ter their death. Thus, a joint will is in essence a will of each of tes­ta­tor mak­ing the will and it will take ef­fect on the death of each tes­ta­tor as his in­di­vid­ual will and his prop­erty would be dis­posed of in the man­ner de­scribed in the joint will. To il­lus­trate, a hus­band and a wife ex­e­cute their wills in a sin­gle doc­u­ment with re­spect to in­her­i­tance of their re­spec­tive prop­er­ties. The hus­band pre­de­ceases the wife and his prop­erty is dis­posed of ac­cord­ing to his wishes as stated in the joint will. Both be­fore and af­ter the death of the hus­band, the wife is free to re­voke or mod­ify the will and set­tle her prop­er­ties ac­cord­ing to her wishes un­less it has been other­wise spec­i­fied in the joint will.

Mu­tual wills

Mu­tual wills, as dis­tin­guished f rom a j oint will are also de­scribed as re­cip­ro­cal wills or mir­ror wills. Mu­tual wills may be made ei­ther by a joint will or by sep­a­rate wills. By mak­ing mu­tual wills, two or more tes­ta­tors con­fer upon each other re­cip­ro­cal ben­e­fits. Re­ciproc­ity of ben­e­fit means that there has been a bar­gain to give and take. In the con­text of mu­tual wills, the tes­ta­tors per­form the roles of tes­ta­tor and ben­e­fi­ciary to­wards each other but where the tes­ta­tors are not each other’s ben­e­fi­cia­ries; there can be no ques­tion of a mu­tual will.

The tes­ta­tors are free to spec­ify whether or not such mu­tual wills are re­vo­ca­ble by them. If the tes­ta­tors de­sire that the mu­tual wills are ir­rev­o­ca­ble, they must spec­ify clearly in their mu­tual wills. In the ab­sence of ex­press or clear word­ings, courts will in­ter­pret the will to gather the in­ten­tion of the tes­ta­tors. Merely be­cause a mu­tual will has iden­ti­cal/ re­cip­ro­cal terms is not suf­fi­cient to es­tab­lish that a mu­tual will is ir­rev­o­ca­ble. If no such clear un­der­stand­ing is es­tab­lished, each tes­ta­tor re­mains free to re­voke his/her will. To il­lus­trate, a hus­band and wife en­tered into a bind­ing agree­ment to cre­ate ir­rev­o­ca­ble mu­tual wills un­der which their prop­er­ties were to be in­her­ited by their son and daugh­ter in equal pro­por­tion. The hus­band pre­de­ceased the wife. His prop­erty de­volved ac­cord­ing to the terms agreed upon in the mu­tual will. Sub­se­quently, the wife ex­e­cuted a new will un­der which she be­queathed her prop­erty only to the son. The sub­se­quent will of the wife is in­valid as she was bound by her agree­ment and was un­der an obli­ga­tion not to re­voke the ear­lier ex­e­cuted mu­tual will.

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