This article is written by Ahul Gupta, Advocate (founder Rahul Gupta & Associates, 1989).

Introduction

During the current pandemic time, we see people scurrying to make their will to plan out their inheritance & succession. With so much confusion & uncertainty around, it is imperative that people may have the knowledge about the kind of will they want to make before they seek legal advice from a lawyer besides the basic essentials of a will like attestation by two witnesses with option also available for having it registered though not compulsory. Generally, the parents tend to make their will separate & independently. However, the concept of Mutual will, together by both parents, is also a good option in given circumstances. 

Mutual will, as the words suggest, is a will signed and executed by more than one person. The most common Mutual wills are executed by a husband and wife together when both of them have independent ownership rights and interest in their respective properties and assets. It is the mutual and solemn intention of both the spouses that after both of their death, their properties and assets devolve peacefully upon their children in the manner as agreed between the two spouses and as so mentioned in their Mutual will.

Another important reason for the need of making a Mutual will is that both the spouses mutually agree that after the prior demise of any one of them, the properties and assets left by the deceased spouse devolve upon the surviving spouse. In such circumstances there also arises a very common situation where some restrictions need to be put upon the surviving spouse not to sell, transfer, alienate or create any third-party rights in respect to the title and possession of the properties. In crux, a Mutual will becomes irrevocable on the death of one of the testators if the survivor testator has received benefits under the Mutual will, and there need not be a specific contract prohibiting revocation as the arrangement takes the form of not two simultaneous mutual wills but one single document. 

Case Laws 

In this regard, there have been various important judgments pronounced by the Hon’ble Supreme Court of India and various state High Courts wherein the basic and foremost requirements, ingredients and legal principles governing a Mutual will have been laid down. 

Reference may be made to the judgement of Hon’ble Supreme Court of India reported in the cases “Krishna Kumar Birla vs. Rajendra Singh Lodha” and this “Ranvir Dewan vs Rashmi Khanna”.

In the case “Krishna Kumar Birla vs. Rajendra Singh Lodha”, the Hon’ble Supreme Court had discussed on the topic of Mutual will where they deduced their discussions into various principles:

• Firstly, a Will which is made in prejudice of an agreement will nevertheless be effective as a Will as it is by its very nature and by its very essence a revocable instrument. 
• Secondly, a subsequent infringing Will would be valid even if it revokes an earlier Mutual Will. 
• Thirdly, similarity of the terms would not be enough to establish the necessary agreement. 
• Fourthly, whether a legatee has taken any benefit under the alleged Wills of 1982 would, however, be relevant. 

Few salient features of a Mutual will are that there always exists an enforceable agreement between the two testators being the spouses and also it is not open and available to the surviving spouse to alter or revoke the Mutual will at any time and more so when the surviving spouse has also received the benefits under the Mutual will. The spirit behind creating a Mutual will is that after the death of one of the two spouses, the survivor spouse holds the estate in trust and to give effect to the provisions of the Mutual will and not to commit any kind of breach of the mutual intentions, trust and agreement between the two testators being the spouses. 

In the case “Dilharshanker C. Bhachech vs. Controller of Estate Duty, Ahmedabad”, the Hon’ble Supreme Court has explained the concept of Mutual will and held that these are separate wills of two or more persons which are reciprocal in their provisions. They are 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 particular mode or manner. They are distinguished from joint wills and are sometimes called reciprocal wills. These wills can be made irrevocable if the following conditions are satisfied: 

• Firstly, the surviving testator must have received benefits from the deceased under the mutual will, 
• Secondly, 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 also said that mutual will may be revoked during the lifetime of the execution of will. However, the property mentioned in the mutual will must remain intact to be enjoyed by the legatee which will become effective on the death of both the executants. 

According to the Hon’ble Supreme Court, there must be a definite intention but such intention need not be expressed in a separate document than the will itself. In the case if ‘definite intention and a separate agreement’ is spelled where the will is in question then, it would be a case of joint and Mutual will. 

The doctrine of Mutual will has evolved in equity and trust to overcome the problem of revocation of wills and to prevent any kind of breach or fraud. In a case of Mutual will, constructive trust is imposed and the surviving testator and spouse is not allowed to commit any breach by going back on the agreement with the first testator who has now demised. 

In the case “Kuppuswami Raja vs Perumal Raja”, wherein the Hon’ble Madras High Court held that there needs to be a specific contract to prohibit revocation as otherwise it takes the form of not two simultaneous mutual wills but one single document. This happens in the situation where the survivor receives benefits under the mutual will then joint mutual will becomes irrevocable on the death of one of the testators. The Hon’ble Court also held that where the brothers in their will use expressions like “our property” or “our will” then it becomes an evidence that revocation can only be done by mutual consent. 

The most distinguishing feature of a Mutual will is the effect and bindingness on the testator spouse who is alive after the death of the other testator spouse & does not have the option of breach of the intention of the Mutual will at any time after the death of one of the spouses. 

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