The authors are advocates of Karanjawala & Co. practicing before the Hon'ble Supreme Court of India and the Hon'ble High Court of Delhi. Ms. Meghna Mishra is a Partner at Karanjawala & Co. Ms. Tahira Karanjawala is a Principal Associate and Mr. Dheeraj Deo is a Senior Associate.
An interesting and unique feature of the jurisprudence on testamentary disposition is the concept of Mutual Wills. In this article, the authors have sought analyze this legal concept, which in many ways, operates as an exception to the ordinary rules which govern testamentary succession. While Mutual Wills are often an attractive option, especially for married couples who own joint and separate assets, an understanding of the legal basis, essential elements and implications of this method of testamentary disposition, would help identify its potential pitfalls and hopefully avoid them.
What are Mutual Wills?
The law governing Mutual Wills must be studied in conjunction with the concept of a Joint Will, as these terms often find mention together and are often confused with each other. The concepts of Joint Wills and Mutual Wills, which originated in Roman Dutch law, over time were accepted in both English and American jurisprudence.1 Today, while the concepts of Joint Wills and Mutual Wills are not found as expressly recognized under the Indian Succession Act, 1925, there are various instances in which the Indian Courts have upheld and given effect to such 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. However, it is not recognized 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/her Will disposing of his/her own separate property; on the death of the first to die it is admitted to probate as his/her 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.2
Mutual Wills are a slightly different concept. 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.3 Where there is an agreement not to revoke Mutual Wills and one party dies having stood by the agreement, the survivor is bound by it.4
What is the objective of Mutual Wills?
Let as examine a very basic example of how Mutual Wills would work: A (wife) and B (husband) are married to each other and have one child C. They each have a half share in one property X – the house in which they live. A and B make Wills, which may either be contained in a single document or in two separate documents, which provide that A and B would, on their demise, each leave a life interest to the other in respect of their respective half shares in property X, and after the demise of the survivor, such share would devolve absolutely upon C. They agree that they will not revoke their bequests unless it is by mutual consent. In this example, if A dies first and B accepts the life interest of A's half share in property X, it is not then open to B to bequeath his half share in property X to his sister D and disinherit offspring C. Having accepted the benefit under the Mutual Will of A, B is now bound to uphold his end of the agreement.
The rationale behind the concept of Mutual Wills is the premise that A is bequeathing a life interest in her half share of property X to B on an understanding that ultimately property X shall be bequeathed absolutely to offspring C. So what is the advantage of this arrangement? It serves a dual purpose- firstly, A ensures that B cannot disinherit her offspring C after the death of A, which may have been the case if A had bequeathed her half share absolutely to B and secondly, B is protected in so far as he receives a life interest A's half share in their house, property X, as opposed to A having bequeathed it directly to offspring C as absolute owner.
Mutual Wills are a useful mechanism for testators (particularly spouses and partners) who have agreed on how their properties should be dealt with after their demise and are comfortable waiving their right to amend their bequests in the future except as agreed upon in the Mutual Wills. The terms and conditions of the Mutual Wills remain binding on the surviving testator after the death of the first testator. Thus, Mutual Wills help to ensure that the properties of the testators are inherited by beneficiaries who were mutually agreed upon by the testators during their lifetime.
What are the essential elements and implications of Mutual Wills?
The leading English case on the subject is the case of Dufour v. Pereira (1769) 21 ER 332, which has been referred to subsequently by numerous decisions including the leading decisions on the subject in India. In this case, a husband and wife executed a Mutual Will and after the death of the husband the wife proved the Mutual Will, but afterwards made another Will revoking the Mutual Will. Lord Camden held that the accepting of legacies under the Mutual Will by the survivor is a confirmation of it. It was held that such Mutual Will, might have been revoked jointly by both or even separately, provided notice of such revocation was given to the other by the party intending such revocation. However, he held that neither of the testators, could during their joint lives do it secretly, nor could it be done after the death of either by the survivor. Since the defendant wife had taken the benefit of the bequest in her favour by the Mutual Will and had proved it, she had certainly confirmed it and therefore the last Will of the wife, so far as it breaks in upon the Mutual Will, is void.
Another important English decision is In Re Oldham Hadwen v. Myles 1925 Ch. 75, in which a husband and wife made Mutual Wills in the same form in pursuance of agreement to make them so, but there was no evidence of any further agreement in the matter. Each gave his or her properties to the other absolutely with the same alternative provisions in the case of lapse. The wife survived and accepted her husband's property under the Mutual Will. She subsequently married again and made a fresh Will. Dufour (supra) was distinguished on the ground it had been based on Lord Camden's finding of fact that a certain unequivocal trust was agreed to and was created by the two parties who executed that Mutual Will and that such an agreement to create a trust could not be inferred in this case, as the Mutual Will gave absolute powers to the survivor.5
The aforesaid English decisions, amongst many others, have been considered by the Indian Courts while laying down the law on the subject. Declining to apply the principle of Mutual Wills to the facts of the case before them, a three judge Bench in Kochu Govindan Kaimal v. Thayankoot Thekkot Lakshmi Amma, AIR 1959 SC 71 (Para 11) clarified that "a will is mutual when two testators confer upon each other reciprocal benefits, as by either of them constituting the other his legatee; that is to say, when the executants fill the roles of both testator and legatee towards each other. But where the legatees are distinct from the testators, there can be no question of a mutual will. (Emphasis supplied)"
Another instructive authority on the concept of Mutual Wills is the decision of the Hon'ble Division Bench of the High Court of Madras in Kuppuswami Raja v. Perumal Raja, (1963) 76 LW 741, a case in which two brothers, P and C executed a Will disposing of properties to different relatives. After the death of C, P executed another Will cancelling and modifying the earlier Will. The Hon'ble Division Bench held that P having taken the benefit under the the Joint and Mutual Will could not have revoked it and executed another Will modifying the bequest earlier made. In coming to its conclusion, the Hon'ble Division Bench on an analysis of the landmark decisions, observed that it is clear under English Law that in order to render Mutual Wills irrevocable, both the following conditions must be concurrently satisfied:6
- The surviving testator must have received benefits from the deceased under the Mutual Will; and
- The Mutual Wills should have been executed in pursuance of an agreement that the testators shall not revoke the Mutual Wills. Such an agreement not to revoke the Wills may either appear from the Wills themselves or may be proved outside the Wills.
These are the two essential elements which the Courts look for even today to determine whether or not a Will is a Mutual Will.
The Hon'ble Division Bench further came to another pertinent legal observation, which has come to be relied upon by Courts subsequently. It held that a Joint and Mutual Will becomes irrevocable on the death of one of the testators if the survivor had received benefits under the Mutual Will, and that there need not be a specific contract prohibiting revocation when the arrangement takes the form, not two simultaneous Mutual Wills, but of one single document. If a single document is executed by both testators using the expressions 'our property' our present wishes', 'our Will' and such similar expressions, it is strong cogent evidence of the intention that there is no power to revoke except by mutual consent.7
In Dilharshankar C. Bhachech v. CED, (1986) 1 SCC 701, the Honble Supreme Court, while examining whether or not a Joint Will executed by a husband and wife was a Joint and Mutual Will, made certain important observations with respect to the manner in which intention of the testators is to be ascertained. The Honble Bench observed that in making this determination "the will must be construed in its proper light and there must be definite agreement found from the tenor of the will or aliunde that either of the joint executants would not revoke the will after receiving the benefit under the will. Such definite agreement need not be express; it can be implied."8 (Emphasis supplied) The Honble Bench further observed that such an agreement may appear from the Will or may be proved outside the Will but is not established by the mere fact that the Wills are in identical terms. If such an agreement is shown, each party remains bound.9 It held that"a different and separate agreement must be spelled out not to revoke the will after the death of one of the executants. That agreement must be clear though need not be by a separate writing but must follow as a necessary implication which would tantamount to an express agreement."10(Emphasis supplied)
The inevitable question which arises is what happens if the surivor who has made a Mutual Will makes a subsequent Will after the death of the first testator. In the case of Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300, the Hon'ble Supreme Court held that despite the existence of a Mutual Will, the representative under a subsequent Will shall take the property, however, he takes the property subject to the terms of the Mutual Will. Probate has to be granted to the latter Will even when made in prejudice of the agreement not to revoke the Mutual Wills, inasmuch as the 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 Mutual Wills. 11 Pertinently, the Hon'ble Court also held that a similarity of the terms would not be enough to establish the necessary agreement for Wills to be considered Mutual Wills.12
The case of K.S. Palanisami v. Hindu Community in General & Citizens of Gobichettipalayam, (2017) 13 SCC 15, is an interesting one. In this case, P and his wife C, who owned considerable properties, jointly executed a Will dated 27.09.1968 stating that, as a couple, they do not have any issue and their relatives are not fit to enjoy their properties. The Will further stated that on the death of any one of them, the survivor shall enjoy the entire property. The Will enumerated various charities to be carried from the income derived from the properties. After the death of P, C alienated 10 properties, some of which were in her name and some which were in the name of her deceased husband. 13 The Will had provided that: "On the death of any one of us, the survivor shall enjoy the entire properties, which are our self-acquired properties, absolutely with all the rights and after his/her lifetime, and carry on the undermentioned charities from and out of the income derived from them without alienating the same. ... We have the right to modify, or cancel this will and to write a new will during our lifetime either jointly or individually."14 (Emphasis supplied) At another place, the Will provided that any property purchased shall be treated as added to the document and any property sold shall be deleted from the document and the remaining properties form part of the document.15
The Hon'ble Court in K.S. Palanisami (supra) held that there was nothing in the Will to suggest that a life interest had been given to the survivor and it was clearly intended that the survivor have the absolute right to the properties, and after his/her death, charity shall be carried out from the income of the properties without alienation of the properties. It was also held that the charitable purpose of the Will is not lost even if the survivor is given an absolute right and he is bound to act in furtherance of the object as agreed to by both testators. It was held that although the Will was irrevocable after the death of the survivor, it expressly granted an absolute right to the survivor. Thus, the Hon'ble Supreme Court held that the Will was a Joint and Mutual Will with an express condition that the survivor shall have an absolute right to deal with the property keeping the object of trust alive.16 The importance of the decision of the Hon'ble Supreme Court in K.S. Palanisami (supra) is that giving the right of disposition to the survivor, when it is a joint decision of both testators, does not detract from the character of a Will being a Joint and Mutual Will.
In the recent case of Vickram Bahl & Anr. v. Siddhartha Bahl & Anr. 2020 SCC OnLine Del 570 (decided on 25th April 2020) the Hon'ble High Court of Delhi came to the conclusion that a husband and wife had executed a Mutual Will and that the survivor (wife) was bound by its terms which had granted to her a life estate and after the demise of both testators had bequeathed their joint house to their two sons and granddaughter who would become absolute owners of demarcated portions of the said house.17 It was further held by the Hon'ble Court that the survivor (wife) could not, during her lifetime sell, alienate, transfer or otherwise deal with the property so as to deprive the plaintiffs (two of the ultimate legatees) nor could she dispossess the plaintiffs who were entitled to continue staying in the part of the property which had been ultimately bequeathed to them absolutely.18
Is it advisable to make a Mutual Will?
The evolution of law with respect to Mutual Wills, while very interesting to trace and study, brings us to the inevitable question of whether it really makes sense, even for a married couple, to make Mutual Wills. Whether or not one should make a Mutual Will is a tricky question, which would largely turn on the circumstances of a particular family. Mutual Wills are useful for testators who are mutually agreed on the ultimate beneficiaries of their properties and prefer to have clarity during lifetimes on how their properties are to ultimately devolve rather than have the flexibility to change their minds at a later stage.
However, it is important to remember that Mutual Wills may work to the detriment of the survivor if there is a change of circumstances which the testators did not anticipate during their lifetimes. This is one of the major drawbacks of a Mutual Will. For instance, in the example taken earlier if A (wife) and B (husband) make Mutual Wills each leaving a life interest to the other in respect of their respective half shares in property X – ultimately bequeathing property X absolutely to their offspring C after the demise of the survivor, it takes away the flexibility of the surviving spouse to disinherit C, even of his/her own half share, if C were to mistreat the surviving spouse after the death of the first testator. Cynics may even argue that making Mutual Wills may actually contribute to the possibility of mistreatment of the surviving spouse in his/her old age as offspring being entitled to properties may ignore their obligations to take care of an aged parent.
To diminish the rigidity that Mutual Wills tend to impose and restrict the potential of such inequity vis-à-vis the surviving spouse, it may be worthwhile for testators making Mutual Wills to bequeath a certain portion of their properties absolutely to the surviving spouse while granting a limited estate or life interest in others, bequeathing them absolutely to the ultimate mutually decided beneficiaries. While it is needless to say that there cannot be a straightjacket formula in these matters, the authors believe that this may perhaps balance out risks in the long run.
The second major drawback of Mutual Wills is that they tend to be prone to multiple interpretations, which may result in litigation after the demise of the first testator. Thus, if testators do decide to make Mutual Wills, it is essential that they clearly and expressly spell out their agreement that such Wills are irrevocable. This could go a long way to prevent a long drawn litigation at a later stage.
These authors are of the view that whether or not one should make a Mutual Will is a question which should be approached not only with an understanding of the legal implications and underlying rationale of this mechanism of testamentary disposition, but also after a realistic assessment of the relationships and trust levels shared between the members of ones family.
1. K.S. Palanisami v. Hindu Community in General & Citizens of Gobichettipalayam, (2017) 13 SCC 15, Para 30
2. Halsbury's Laws of England, 5th Edn., Vol. 102, Para 9
3. Halsbury's Laws of England, 5th Edn., Vol. 102, Para 10
5. In Re Oldham Hadwen v. Myles 1925 Ch. 75 at Pg. 87-89
6. Kuppuswami Raja v. Perumal Raja, (1963) 76 LW 741 at Pg. 747
7. Ibid at Pg. 749
8. Dilharshankar C. Bhachech v. CED, (1986) 1 SCC 701 at Pg. 719
9. Ibid at Pg. 721.
10. Ibid at Pg. 721.
11. Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300 at Pg. 343, 347, 348
12. Ibid at Pg. 348.
13. K.S. Palanisami v. Hindu Community in General & Citizens of Gobichettipalayam, (2017) 13 SCC 15 at Pg. 24-25
14. Ibid at Pg. 31, 44.
15. Ibid at Pg. 45.
16. Ibid at Pg. 46-47
17. Vickram Bahl & Anr. v. Siddhartha Bahl & Anr. 2020 SCC OnLine Del 570, Para 3, 21-23
18. Ibid at Para 24-25, 38.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.