Mutual Will And Joint Will

What is a will?

A Will is a legal declaration of the testator’s wish regarding the concern of- In whose favour the property shall devolve after his death. It is covered by the Indian Sucession Act, 1925.

The following terms are important to be explained:

1. Testator- He is the maker/author of the will.

2. Benficiary/Legatee- He is the person on whom the property devolves after death of the testator.

3. Bequeath- It is the tranfer/assignment made by the testator to the beneficiary.

4. Codicil- A document to make any clarification on the content of the will or to modify/add any content to the existing will. In absence of a will a person is said to have died 'intestate'.

Rules of making a Will

1. Section 18 (e) of Registration Act provoides a list of documents for which registration is optional. Under this section, Will is also included and therefore it is not necessary to register a will.

2. A will will be implemented only after the death of the testator.

3. A will can be revoked at any time. It can be revoked and made several times. There is no restriction to the number of times a will can be modified.

4. A will has to be signed by the testator with a signature. In case they are not able to sign, they can put their thumb impression. In case the testator is not able to do either, a person who is allowed by the testator can be asked to do it on their behalf in their presence.

5. A will is required to be attested by 2 persons as witness.

6. There should be a clear description of the properties mentioned in the will.

7. A doctor’s certificate can to be attached to the will (it can also be a part of the will) verifying good mental and physical condition of the testator.

8. In case someone has made a new will then they should mention in the new will the existence of the last will and duly acknowledge that the previous will be revoked. It should be mentioned if the previous will was revoked in the new will.

9. In case there are multiple wills made, there could be a question of the validity of the will that should be implemented. In this case, the will with the latest date is valid.

Types of Will

There are 8 types of will

1. Holographic will- These wills are called holographic wills. They are completely handwritten. They have to be signed by the testator and 2 witnesses to be valid.

2. Privileged will- It is an Informal will which is valid. It can be either Oral or in writing. These types of wills are covered in Section 66 of Indian Succession Act.

3. Unpriviledged will- Unprivileged wills are the wills that can be created by every person other than those who can create a privileged will. These are covered in S. 63 of Indian Succession Act.

4. Mutual Wills- These are a common estate-planning tool. When a couple agrees to leave all or part of their estate to the children, they opt for Mutual Will. Following the death of one of the parent, the other won’t change the will in order to defeat their current joint intention. Mutual wills are not much recommended as the future is unpredictable and what the couple might feel in the future. It is said that young couples should not opt for Mutual will due to the inflexibilty of that type of will. It might lead to a tied-hand situation for the surviving party.

5. Concurrent Will- These sort of wills are helpul for people who hold multiple properties in different locations of the world. In this situation, a person prefers to have two or more wills than just one will. This execution of multiple will is with the logic that they are treated as under the law and order of the country where it is created or the property is located. These wills are said to be concurrent to each other and hold themselves in their individual capacity unless indication of contrary. This will can also be used for properties in different states.

6. Joint will- This covers the will of two or more people. It is usually a husband and a wife. It is intended to take effect after the death of both the parties. It will not be enforceable during the lifetime of both. These can be revoked at any point of time by either of the party during their joint lives or after the death of one, by the survivor. It is said to be more flexible than Mutual Will.

7. Duplicate Will- It is common that a testator for his safety may make a copy of the will. One is to kept by him and other in safe custody of a bank, executor or a trustee. If the testator mutiliates or destroys the one in his custody, it is considered a revocation of both the wills.

8. Sham Will- It is based on the contention that the last will is bogus or a forged one. If a document is executed with all due formalities reporting it to be a will, it will still be a nullity if it can be shown that the testator did not intend it to have any tesamentory operation. An intention to make the will is essential to the validity of a will.

Importance of a will

The importance to create a will can be seen by the lakhs of civil cases that are pending in terms of disputed property after the death of the owner of the property. It helps the owner of the estate to get full control on what happens to his property(s) after his demise. They can wilfully decide what part of inheritance goes to whom. This brings out great satisfaction and consolation that the assets of the Testator is going into the hands he intends to.

What are Mutual Wills and Joint Wills?

These can also be called Estate Wills. These types of wills are decided upon when someone has amassed assets and needs to make decisions on them or has some responsibility in form of children who will have interest in the property in the future.

Mutual Will

Mutual will cannot be changed. It is inflexible in its terms. It is known to restrict a person’s freedom to deal with his property in a lifetime. A mutual will comes with a legally binding promise not to change the terms. The survivor cannot then make changes following the death of the other (who kept his or her promise and now has no opportunity to make changes).

Joint Will

This is a will which involves joint ‘will’ of the parties. This answers for them the worry that what will happen to their assets when one or the other unexpectedly dies? Couples usually want to go for a Joint Will. Here, a Single will is shared “ jointly” or between two individuals, typically spouses. It enables one spouse to inherit the entire estate upon the death of the other spouse. While it provides security to the interest of the deceased, a Joint will is not the best option for the surviving spouse. The surving party will inherit the entire estate and after the death of the surving party, the estate will transferred to the children. The surviving party does not get their individual control of the party. A joint will acts as a binding contract which restricts the participants to make changes in the will when one dies.

Paralysed Benefits

In all likelihood, one spouse will survive the other one. But after the death of one spouse, The hands of the surviving spouse are tied. It diminishes the scope of changing the inheritance after the death of one spouse, by the other spouse. In case of an unfortunate early death of a spouse, the surviving spouse would not be able to add the new spouse or the children from the next marriage in the beneficiary of the property from the last will. It also restricts the changing of inheritance of the child from previous marriage. It limits the ability to make independent decisions. A property which is left cannot be sold or rented. So, while it might seem that they own the property, they cannot enjoy the benefits from the property. This can be called a Paralysed Benefit.