What is Joint and mutual wills

There are ample precedents in India, adopting the concept of joint & mutual wills. ‘Theobald’ on Wills 19th Edition (Sweet & Maxwell) has defined joint Wills and mutual Will in para 1011 and 1012 in following manner:

“1-011. Persons may make joint wills which are 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 the equitable doctrine of mutual wills applies. Under this doctrine there must be an agreement for the survivor to be bound by the arrangement between them; but the mere fact of the execution of a joint will is not sufficient to establish such an agreement for the survivor to be bound. If this doctrine applies, a legacy to a legatee who survived the first testator, but predeceased the second, does 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. “

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.

The revocable nature of the wills under which the interests are created is fully recognised by a probate court; but in certain circumstances equity protects and enforces the interests created by the agreement despite the revocation of his will by one party after the death of the other without having revoked his will, i.e. the survivor’s property will be affected by the trust imposed so as to give effect to the agreement.”

22. Halsbury’s Laws of England 5th Edition Vol. 102 under the heading ‘Testamentary Disposition’, in para 9 & 10 defines joint Wills & mutual Wills in following manner:

“9. Joint Wills. 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 not, however, recognised in English law as a single will. 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.

10. Mutual wills. 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. Wills which by agreement confer benefit on persons other than the testators, without the testators conferring benefits on each other, can also be mutual wills. Where there is an agreement not to revoke mutual wills and one party dies having stood by the agreement, a survivor is bound by it.

The doctrine of mutual wills has been said to be anomalous and unprincipled, so that the authorities do not always speak with one voice on what is truly essential to the doctrine or as to the mechanisms by which it operates or as to the consequences of its application. However, it has been held that there is at least clear guidance on what must be established before the doctrine can be invoked in that there must be an irreducible core of a contract between T1 and T2 that in return for T1 agreeing to make will in form X and not to revoke it without notice to T2, then T2 will make a will in form Y and agree not to revoke it without notice to T1. It seems that the precise form and terms of the underlying contract do not have as great a significance as the finding that such a contract actually exists and was entered into.

It appears that where it is established that there is a clear agreement in the mutual wills or elsewhere, that the wills are to be mutually binding (whether or not expressed in language of revocation) the law will give effect to that intention by way of a ‘floating trust’ and the trust so created is not destroyed by the remarriage of the second testator after the death of the first.”

23. One of the earliest English cases, dealing with the mutual Will is Dufour v. Pereira, (1769) 21 ER 332. In the above case a husband and wife have executed a Will jointly. Lord Camden in the above case stated as follows:

“The question is, as the husband by the mutual will assents to his wife’s right, and makes it separate, whether the second will by the wife is to be considered as void.

It struck me, at first, more from the novelty of the thing than its difficulty. The case must be decided by the laws of this country. The will was made here; the parties lived here; and the funds are here. Consider how far the mutual will is binding, and whether the accepting of the legacies under it by the survivor, is not a confirmation of it.

I am of opinion it is.

It might have been revoked by both jointly; it might have been revoked separately, provided the party intending it, had given notice to the other of such revocation.

[421] But I cannot be of opinion, that either of them could, during their joint lives, do it secretly; or that after the death of either, it could be done by the survivor by another will.

It is a contract between the parties, which cannot be rescinded, but by the consent of both. The first that dies, carries his part of the contract into execution. Will the Court afterwards permit the other to break the contract? Certainly not.

The defendant Camila Rancer hath taken the benefit of the bequest in her favour by the mutual will; and hath proved it as such; she hath thereby certainly confirmed it; and therefore I am of opinion, the last will of the wife, so far as it breaks in upon the mutual will, is void.

And declare, that Mrs. Camilla Rancer having proved the mutual will, after her husband’s death; and having possessed all his personal estate, and enjoyed the interest thereof during her life, hath by those acts bound her assets to make good all her bequests in the said mutual will; and therefore let the necessary accounts be taken.”

24. A Division Bench of Madras High Court, in an early case reported in Minakshi Ammal v. Viswanatha Aiyar, ILR 33 Madras 406, had occasion to consider mutual & joint Wills. In the above case, a husband and wife made joint Will in December 1897. The husband died in the year 1899, thereafter in the year 1904, the testatrix executed a gift to her daughter. Plaintiff, claiming to be beneficiary of joint will brought a suit. The issue was, as to whether, at the instance of testatrix the Will was irrevocable or revocable.

25. Chief Justice Sir Arnold White after referring to ‘Theobald on Wills’ stated as follows:

“………..With regard to the authorities, so far as I am aware, the only authority which can be said in any way to support the contention advanced by the plaintiff, who is the respondent before us, is a judgment of Lord Camden which is very shortly reported in a case in Chancery decided so long ago as 1769, Dufour v. Pereira, 1 Deck 419. That case, however, was discussed and distinguished in the later case of Walpole v. Oxford,(1797) 30 Eng.,Rep., 1076 and the decision in that case is clearly against the plaintiff’s contention that the will is irrevocable. The Privy Council case Denyssen v. Mostert,(1872) LR, 4 PC, App. 236 is an appeal from the Cape of Good Hope, and it turns, at any rate to some extent, on questions of Roman and Dutch Law. So far as I know, there is nothing in that case which helps the contention put forward on behalf of the plaintiff. But the most recent, and, as it seems to me, the clearest exposition of the law on this question is that given by Lord Barnes, Sir Gorell Barnes, as he then was, in the case of Stone v. Hoskins, (1905) LR, Prob. Dn., 194 at page 197, he says: It appears to me that the result is tolerably plain. If these two people had made wills which were standing at the death of the first to die, and the survivor had taken a benefit by that death, the view is perfectly well founded that the survivor cannot depart from the arrangement on his part, because by the death of the other party, the will of that party and the arrangement have become irrevocable; but that case is entirely different from the present, where the first person to die has not stood by the bargain and her ‘mutual will’ has in consequence not become irrevocable.” By the “mutual will” he means the will made by the survivor. “The only object of notice is to enable the other party to the bargain to alter his or her will also, but the survivor in the present case is not in any way prejudiced. He has notice as from the death.” [ SUPREME COURT OF INDIA  -DR. K.S. PALANISAMI(DEAD) Vs. HINDU COMMUNITY IN GENERAL AND CITIZENS OF GOBICHETTIPALAYAM -Decided on : 09-03-2017 ]