joint will

In this article, Shubham Prakash discusses whether it is possible to make a joint will with another person or not.

Introduction

A will is a legal declaration by which a person, a testator transfers his/her estate or property to another person, a beneficiary or legatee at the time of death. A will can be made by anyone who is 21 years or above in an oral or written form expressing the manner in which the estate or property would be transferred and distributed. The ‘Will’ will come into effect after the death of the testator. If the person does not write a will when he is said to have died as intestate and in such cases, his devolution of a property will be governed by his personal laws.

Definition

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.

Statutes Relating To Concept Of Will

There are many laws which deal with the concept of ‘Wills’

  • 2(h), Indian Succession Act, 1925
  • Hindu Law (Hindus Personal Law)
  • Muslim Law (Muslims Personal Law)
  • 40 and 41, Indian Registration Act, 1908

Valid Will

  1. There should be a name of the Testator.
  2. The testator has the right to appoint a Legatee.
  3. The Will would be executed after the death of Testator.
  4. Under Section 63, Indian Succession Act, 1925 a Will can be revoked by the testator during his lifetime and can also make an alteration in the will which is called Codicil.
  5. A third party does not have the right to file a civil suit against testator on the ground of alteration or cancellation of a Will.
  6. The intention of the testator is supreme and has the power to revoking the previous testamentary instruments and stating that ‘This is my last Will’.
  7. The testator can make a declaration of his will multifarious time but when he or she uses the word ‘Last and Only will’ at the time of his death it would be assumed that all the previous will was revoked and a fresh will come into effect.
  8. If the original will has been lost, it is mandatory for the testator to provide proper evidence with a legitimate reasoning for the revocability of the will. If it is proved in the court of law that an original will is lost then ‘Subsequent will’ is valid and will be executed.

Procedure to Make A Will

While making a will all the necessary provision is taken into consideration with utmost care and must contain several part and clause. Although there is no particular format that is adopted while making a will. But in a will the testator should include:

  1. In the first paragraph, there should be full name, address, age, etc. of the person who is making the will stating that he is making the will in a free sense and free from any kind of pressure and undue influence.
  2. It is the duty of the testator to reveal all the information about the property and documents. To tell the current value of the house, land, bank fixed deposit, mutual funds and the share certificates owned by the testator. This information should be disclosed or communicated to the executor of the will or any of the family members or friends.
  3. When an original will is made the testator should clearly mention who should acquire his entire property (in case of Muslims, Will cannot be made for more than 1/3rd of the property) so that the interest of the successor is not infringed after the death of the testator. In case of the minor, the legal guardian should be made as the beneficiary of the property, so that when the person becomes major he has right to inherit the property. Although he has the rights not to accept the property.
  4. Once the original will is finalized, the testator should sign the will carefully in presence of at least two witnesses, who also have to sign after the testator signature. The will should also contain the date and place at the bottom and it is not mandatory for the person to sign all the pages but he may sign so that there is no legal instability.
  5. With the death of the testator, the executor of the will or a legal heir of the deceased should apply for probate. The court will ask the executor or the heir if there is any objection regarding the execution of the will. If there is no such objection, the court will grant probate. A probate is generally considered as evidence in order to execute the will.
  6. If there is any objection raised by the heirs in executing the will, the parties are called upon to make mutual consent. If there is no objection raised the probate will be granted and the will would be executed.

‘Joint Will’ In Comparison With ‘Other Wills’

There are different types of will like Simple Will, a Testamentary trust will, Living wills and Joint wills. But 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.

But the concept of joint will is hardly used in India. While making a joint will there are certain provisions laid down that a single spouse cannot revoke or alter any clause until and unless there is a mutual consent between the two spouses. A conventional will can be revoked at any point in time but a joint will cannot be revoked as it is a legally binding contract.

In Narayani and Anr. v. Sreedharan[1], 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.”

How many people can make a joint will?

A minimum number of member required for making a joint will is two whereas ‘n’ number of members can make a joint will.

Best practices to follow while drafting a joint will

A joint will can be revoked at any time during the lifetime of the testators or after the death of one of the testator. A joint will can be executed with each other or with the third person in accordance with a proper agreement or contract in order to transfer or dispose of the property. A joint will can be made with another person through an agreement but it cannot be revoked by one testator. If a joint will is made by the surviving testator with another person, then the testator gets to benefit from the legal document that has been created between the testator and another person.

When a testator enters into a contract or agreement with another person, the clause of the will should be definite so that the joint testator cannot revoke it will when they receive benefits from the will. The joint will is generally made when:

  • The testator is in a dominant position but that does not mean that they seize all the legal rights of a person.
  • As the concept of joint will clearly state that one of the testators cannot revoke a joint will, mutual consent is necessary.
  • At the same time if it can be proved that there is no such agreement made between the parties then the testator has the right to revoke the will.
  • If one testator has died without disposing of his property and has not revoked the joint will, the other testator has the right to do so, although an agreement has been made.
  • But if it is clearly mentioned in the agreement that a notice has been given to a survivor not to alter or revoke the will, then he cannot do so.
  • Since the will gives him the right to dispose of his property or make an alteration on his part.
  • In case deceased has not altered or revoked his will, the survivor will get a probate from the court which would be considered as the ‘Last Will’. The survivor has the power to execute the provision of the joint will.

Precautions to take while drafting a joint will

The concept of joint will is hardly used because it is not possible for the surviving spouse to change the terms and condition of the will, as it may not give him or her right to dispose of the property of the deceased. The survivor may not able to make an alteration in the will because:

  • It puts a restriction on the money that is going to be inherited by the child who is financially weak.
  • If the child gets the property very early, they may misuse the property or may sell it to another person at a very low price.

Registration of joint will

Although in India, the registration of will not compulsory but it can be registered at the discretion of testator. But it is not easy to get joint will registered after the death of the testator (i.e. husband). It should be registered by Sub-Registrar, checking the validity of the will. The sub-registrar has the discretion to register the will. They have to check the validity of the will because there are instances where the registration is done fraudulently or by forgery.

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.

What can be bequeathed in a joint will?

In a joint will, the testator bequeaths or leaves his property and assets which he or she has acquired throughout his or her life. The property would be transferred in favour of the legatee.

Whether ancestral property can be given by a way of joint will?

No, the ancestral property cannot be given by undivided share in the mitakshara or dayabhaga co-parcenary property.

Who can raise suspicion in a joint will?

A suspicion can be raised by one of spouse if the other spouse goes against the terms and condition of the will. The third party can raise the suspicion that should be in favour of natural legal heirs of the deceased.

Supreme Court Rules on Right of Alienation in a joint will and mutual will

Alienation is defined as a capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although the property is generally deemed to be alienable, it may be subject to restraints on alienation. In K.S. Palanisami (Dead) v. Hindu community in general and citizens of Gobichettipalayam and others[2], the Supreme Court of India discussed on the issue related to an ‘absolute right’ to deal with the properties under a ‘joint and mutual will’. The Court held that when there is any legal declaration made by the testator with respect to property then the court cannot ignore or add any word while executing the will. The intention of the testator is taken into consideration while reading the language of the document. Generally, in a joint will, the word ‘absolute’ is used many times which leads to myriad interpretations:

  • The construction of the will is entirely unambiguous;
  • The will specifically manifest the testator’s intention

Can a ‘joint will’ take effect after the death of any one of the testator?

The joint will made by the two-person will take effect after the death of both the person. The will not be admitted to probate during the life of either. Joint will are revocable at any time by either of the testators during the joint lives, or, after the death of one of them, by the survivor.  

Conclusion

In executing a joint will it is necessary that the intention of the testator should be taken as primary evidence. In a contract or an agreement, it is necessary to prove that after the death of one of the testator the surviving testator have only disposed of his property only. So, it is concluded that contract plays a major role in executing the joint will.

[1] AIR 2012 Ker 72

[2] AIR 2017 SC 1473

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