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Law Of Joint Will

Law Of Joint Will Indian Personal Law Context

Introduction

The law relating to joint and mutual wills has its origin in Roman Dutch law. But a joint of a mutual will is not wholly unknown to our law though only the very few cases have come out for decision before the courts in India.

A joint will is a single testamentary instrument constituting or containing the wills of two or more persons and jointly executed by them; while mutual wills are separate wills of two or more persons which are reciprocal in their provisions and executed in pursuance of compact or agreement between two or more persons to dispose of their property to each other or to third persons in the particular mode or manner. Mutual wills as distinct from joint wills are sometimes described as reciprocal wills. In describing a will the adjective mutual or reciprocal is used to emphasise on the board the contract shall element which distinguishes it from a joint will.

Joint will is a valid under the Indian Succession Act, 1925. Two people can make a joint will. Before the Hindu Succession Act, 1956 to Hindu joint family property could not be disposed of by Will; nor could the coparcener dispose of his undivided interest by will. But now that Section 30 of the Hindu Succession Act, 1956 permits a coparcener to dispose of his undivided interest by Will; it seems that now it depends on the coparcener's personal wish to make the joint will in respect of his undivided interest in the joint Hindu family property.

Any two persons are entitled to make a joint will however a joint will is valid only if it is made by two persons who are related to each other or have joint ownership or are joint beneficiaries of any trust. A joint will is perfectly valid under all personal laws.

Although this area of law is controversial, the law of joint will has been thoroughly examined and analysed in this research paper. Controversies like the Birla family dispute have also been covered in this research paper. The origins of the law of joint will with regards to American and British Jurisprudence has also been analysed.

Will: Meaning And Different Kinds

A will lays down the wishes of the deceased, which in turn dispose of his property in the manner appropriated by him after his death. "A Will is the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death." It is a document whereby a person makes a disposition of property which is to take effect after his death. In other words, it is a testamentary disposition of property, meaning that the property gets disposed only after the death of the person making the disposition. A non-testamentary disposition of property takes place immediately on making the disposition According to Section 2(h) of the Indian Succession Act, 1925 a “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.

Kinds Of Wills Under The Indian Succession Act

Under the ISA, 1925 there is a mention of only two kinds of Wills: (a) privileged wills and (b) unprivileged wills.

Privileged Wills: Under Section 65 of the ISA, 1925 Privileged wills are defined as wills which can be made under two conditions: (a) The will must be executed by a soldier, airman, mariner who has completed the age of eighteen years and (b) Who is employed in an expedition or engaged in an actual warfare. Under Section 66 of the ISA, 1925 the mode or method of making a privileged will are laid down

Unprivileged Wills: Under Section 63 of the ISA, 1925 the provisions for the execution of unprivileged wills are laid down. Even Hindus fall under this provision. The conditions are: (a) It must be signed by the testator or by some other person in his presence and by his direction. The testator may in the alternative affix his mark, such as a thumb impression. (b) It must be attested by two or more witnesses.

Law Of Joint Will And Mutual Will In India

The law of joint will and mutual will although they are not mentioned in the ISA, 1925; it has its impact in testamentary succession under all personal laws in India. The law of joint will and mutual will although has not been codified and there are many interpretations to it. The Supreme Court has dealt in two landmark decisions in the years 1959 and 1986 the law of joint wills. However this topic is still very controversial in the law of Wills and therefore a better understanding is necessary.

Law Of Joint Will

According to Halsbury's Laws of India, “a joint or conjoint will is a testamentary instrument executed by two or more persons, in pursuance of a common intention, for the purpose of disposing of their several interests in the property owned by them in common, or of their separate property treated as a common fund, to a third person of persons.” However, where it deals with a joint interest of the persons executing it, like a mutual will, if one person takes a benefit under it, he forfeits his right to revoke is part of the disposition by his conduct. A joint will is valid as regards the property of each testator and a probate may be granted on the death of the first and again on the death of survivor. Sometimes the joint will executed by members of the joint family may operate as a family arrangement and, therefore, are well. It becomes operative immediately after the death of any one of the testators so far as his properties are concerned and is not postponed till the death of all.

Law Of Mutual Will

A will is mutual when the testators confirm 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 mutual will. A mutual well is a mode of disposition to a certain beneficiaries by two persons. Mutual wills are also called reciprocal wills and are generally founded on contract for their execution. A joint mutual will becomes irrevocable on the death of one of the testators is the survivor had received benefits under the mutual will, and there need not be a specific contract prohibiting revocation when the arrangement takes the form of not two simultaneous mutual wills but one single document.

Consequences Of Joint Will Under Different Personal Laws

Different personal laws in India can be broadly classified under three different heads (a) Hindu Law of Succession (b) Mohammedan Law of Succession and (c) Christian Law of Succession (as provided in the ISA, 1925)

Hindu Law of Succession: The Hindu law of succession it is broadly given under the Hindu Succession Act, 1956, however with regards to testamentary succession, Section 30 of the HSA, 1956; just gives the right to Hindus to dispose of their interest in the coparcenary property. However with regards to testamentary succession it remains silent and hence certain provisions of the ISA, 1925 are applicable to Hindus. This is further enhanced due to the 1927 Amendment in the ISA, 1925. Therefore the law of joint will also is applicable in the case of Hindu law of succession. Therefore other allied religions like Buddhism, Jainism and Sikhism, under Hindu law; also are applicable to the law of joint will. Furthermore the Supreme Court of India in two landmark cases has laid down the law of joint will.

Mohammedan Law of Succession: The Mohammedan Law of Succession is uncodified and ancient Muslim law will apply. However few constraints are different in respect to the ISA, 1925. Only one third of a Mohammedan property can be bequeathed according to the Koran. The Koran offers to the testator the means of correcting to a certain extent the law of Succession, and of enabling some of those relatives who are excluded from inheritance to obtain a share in his goods, and of recognising the services rendered to him by a stranger, all the devotion to him in his last moments. At the same time the Prophet has declared that the power should not be exercised to the injury of the lawful heirs. Most importantly the Muslim Law of Wills, does not prescribed any particular form for making wills. Therefore even an oral will is perfectly valid. Hence even a joint will be perfectly valid under Muslim law.

The rules of revocation of joint will also be similar regardless of whichever personal law.

Christian Law of Succession: The Christian Law succession is basically, enshrined under the ISA, 1925. Under which the law of joint wills is not abrogated nor is it abolished. It is not against any of the provisions in the ISA, 1925; therefore the law of joint wills is perfectly acceptable. Moreover in other common-law countries like England and the United States of America also follow the law of joint will. Christian Law of Succession is basically based on the English Law succession. Therefore given under the Christian of succession joint will is perfectly applicable.

Moreover the law of joint will comes under the definition of Will under section 2(h) of the ISA, 1925, a “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. The only difference being that there might be more than one testator. However there is no numerical limit to the amount of testators in one Testament.

Important Cases Under The Law Of Joint Wills

The law of joint wills is basically laid down by three successive decisions. The first being a Supreme Court decision in 1959, where the concept of joint will was questioned. The second being a Madras High Court decision in 1964, where the revocation of joint will has been resolved. The third being the Supreme Court decision in 1986 which finally removed all ambiguity in relation to the law of joint will.

Kochu Govindan Kaimal V. Thayankoot Thekkot Lakshmi Amma

In this case the court held that ‘a joint will, though unusual, is not unknown to law.' "A joint will is a will made by two or more testators contained in a single document, duly executed by each testator, disposing either of their separate properties, or of their joint property. It is not, however, recognised in English law as a single will. It operates on the death of each testator as his will disposing of his own separate property, and is in effect two or more wills".

The Supreme Court recently upheld its earlier views in a 1986 case which is the final law of the land.

Dilharshankar Bhachech V. Controller Of Estate Duty, Ahmedabad

In this case the position on the law of joint wills was settled by the Supreme Court of India. It referred to the previous decision given in the 1959 case. In this case the court made a distinction with regards to the joint will and mutual will and the consequences of revocation under both wills.

According to Justice Sabyasachi Mukharji, joint wills and mutual wills are distinct i in respect of the revocability.

Joint Wills - Persons may make joint Wills, which are, however, revocable at any time by either of them or by the survivor. A joint Wills 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 there is a contract not to revoke the Will; but the mere fact of the execution of a joint Will is not sufficient to establish a contract not to revoke. So a legacy to a legatee who survived the first testator, but pre-deceased the second, did 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.

Mutual Wills - The term "mutual Wills" is used to describe separate documents of a testamentary character made as the result of an agreement between the parties to create irrevocable interests in favour of ascertainable beneficiaries. The revocable nature of the Wills under which the interests are created is fully recognised by the Court of Probate; but in certain circumstances the Court of Equity will protect and enforce the interest created by the agreement despite the revocation of the Will by one party after the death of the other without having revoked his Will.

This distinction is important to understand the difference in joint and mutual Wills. The same controversy arose in the ongoing Birla family dispute. The Birla family dispute controversy will be dealt with in the subsequent chapters.

Evaluation Of The Law Of Joint Will Through British And American Jurisprudence

The law relating to joint and mutual wills has its origin in Roman Dutch law. But a joint of a mutual will is not wholly unknown to our law though only the very few cases have come out for decision before the courts in India.

British Jurisprudence And The Law Of Joint Will

In England the courts have evolved their own principles of law regarding joint and mutual wills and so far is English law is concerned the principles appear to be fairly well settled. In regard to joint and mutual wills that decisions in England have recognised a distinction in the powers and jurisdiction of a court issuing to probate and a court whose jurisdiction has been invoked by a party for the enforcement of the rights based upon the agreement embodied in a mutual will.

An examination of the cases in England shows that in the case of a mutual will, if there is an agreement that neither of the testators shall have the power to revoke, and the surviving testators receives benefits from the deceased under the mutual will, the survivor is not entitled to revoke the will when the first testator had died leaving the mutual will unaltered and unprovoked in pursuance of the agreement and in the hope and in the trust that the mutual will, will be adhered to by the survivor. If however the survivor in breach of faith provokes a mutual will by making a new will, it is the new will which will have to be necessarily admitted to probate so far as the properties of the survivor are concerned. In an application for appropriate to coat has no jurisdiction to enquire into the nature of the rights of the testator in the property covered by the will is to probate quote is satisfied about due and proper execution of a will buy a testator in the sound disposing state of mind it is bound to grant of probate of the will. It is however open to the beneficiaries under the mutual will to take proceedings in the Chancery Division for the enforcement of their rights, and the execution of the trust as envisaged in the mutual will to take proceedings in the Chancery Division for the enforcement of their rights, and the execution of the trust as envisaged in the mutual will. The personal representatives under the latter will can be compelled to hold the entire estate upon trust to give effect to the provisions of the mutual will.

Under the English law in order to render mutual wills irrevocable, both the conditions must become currently satisfied (a) the surviving testator must have received benefits from the deceased under the mutual will, and (b) the mutual wills should have been executed in pursuance of an agreement that the testators should not revoke the mutual wills. Such an agreement not to revoke wills may either appear from the wills themselves or maybe proved outside the wills.

American Jurisprudence And The Law Of Joint Will

In America the law of wills is now diversifying into a new area in law called Elder Law. The concept of joint Will is very prevalent in America as opposed to India

“A court of probate cannot admit a mutual will to probate where it has been revoked by the testator, and cannot enforce an agreement to make mutual wills by ordering probate of a will which was revoked in breach of such agreement. However, it is well settled that, where the location was wrongful and unauthorised and the testator had devised or bequeathed his property in a manner other than that contemplated by the claimant on which the mutual will was founded, a court of Equity, by reason of its extraordinary power to enforce specific performance of contracts and to prevent frauds, will ordinarily enforce such agreement, in order to prevent fraud or injustice by decreeing specific performance of the agreement or five fastening on impressing a trust on the property in favour of the beneficiaries of the will revoked in violation of the arrangement…….”

As regards to the right of revocation however several courts of the various states in America appeared to have taken varying views. In some cases the view appears to have been taken that there should be an express agreement between the testators prohibiting them from provoking the will except by their mutual consent.

Evaluation Of The Birla Controversy Along With The Law Of Joint Will

Facts: In the Birla joint will controversy, there are a series of facts which are highly debatable. The confirmed facts are that Priyamvada Birla and M.P.Birla had mutual wills drafted in 1982. The basic agreement was that either of them would get all the property they jointly owned, in case of any death of either of them. The will contained the entire rupees 5000 crores worth Birla Enterprises and it was supposed to be disposed of in the form of charitable trusts in the name of their successors. However R.S.Lodha, the chartered accountant of the Birla group, after the death of Priyamvada Birla claimed that the deceased was unhappy with her family members and she had created a new will in 1998. Under the new will the deceased is supposed to have given all the properties by Will to the chartered accountant, as opposed to the will created in 1982. M.P.Birla had expired before the drafting of the new will. The inconsistencies in the new will are many, the language was ambiguous and furthermore the new will removed any beneficiaries that were there under the old will. A major inconsistency in R.S.Lodha's version of the facts was that there were only around four crores worth property in the deceased's name. However in reality she was under control of the entire enterprise valued around roughly rupees 5000 crores.

Issues: The two main issues of this case are: (a) Does the concept of joint wills exist? And (b) Can a mutual will be revoked after the death of one party?

Contentions: Before the High Court of Calcutta, the contentions of the Birla family were that the concept of joint wills exists and it cannot be revoked after the death of one party.

Before the High Court of Calcutta, the contentions of R.S.Lodha were that the concept of joint wills does not exist and a fresh will would rewrite the previous will in this case.

Judgment: The final judgment on the case has not yet been decided by the Calcutta High Court. However if any judgment were to be passed on this case it would be very simple that the concept of joint wills very much exists and if one of the testators of a mutual will expires, then if the surviving testator gains any benefit out of the death of his co-testator; then such a will would become irrevocable. Furthermore as the latest case on joint wills, Dilharshankar Bhachech v. Controller of Estate Duty, Ahmedabad which was decided by the Supreme Court of India emphatically declared that the revocation of a Joint Will cannot take place if one of the Co-testators gains any benefit due to the death of his co-testator.

Therefore in my opinion the Birla family should be successful, because the case is about a joint and mutual Will and not any other will.

Conclusion

The law of joint wills is uncodified and there is a lot of controversy surrounding the application of a joint Will. However the Supreme Court has clearly laid rest any of those controversies with the decision of Dilharshankar Bhachech v. Controller of Estate Duty, Ahmedabad. The law of joint Will has been borrowed from American and British Jurisprudence. The Birla case is a controversial case which has been dealt with in this research paper. In this researcher's opinion, the will of family should succeed because it was a joint Will. The concept of joint Will is very much alive in India and is implemented. However ambiguity has to be removed in the form of a legislation which will revamp the concept of joint Will. An amendment to the ISA, 1925 is suggested as joint Will has to be incorporated by the statute. This is advocated due to the need for codified law, which could help the current status of joint Wills.

Furthermore the law of joint wills, the most important feature is revocation and a joint will cannot be revoked if one of the co-testators has received any benefit after the death of the other co-testator. However a revocation can be made prior to the death of any of the testators. A joint Will is not a completely irrevocable will.

This concept has been borrowed from British jurisprudence, however it is still in vogue in India and the law of joint wills, will continue to exist. A joint Will is however distinct from a mutual will. This distinction has been pointed out in the latest Supreme Court decision of Dilharshankar Bhachech v. Controller of Estate Duty, Ahmedabad. A mutual will in the strict sense of the term is a joint will, but, well tried agreement or arrangement similar provisions are made by separate wills, these are also conveniently known as mutual wills.

Therefore it is important to clearly lay down the guidelines for the distinction of joint wills and mutual wills. The law of joint wills is a controversial area which needs codification. Therefore it is urged that in order to remove all controversies, a legislation is required.

As According to Holmes, “life of law is not logic, but experience”.

Bibliography

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Hailsham ed. et al., “Halsbury's Laws of England”, 4th ed., 1998, Vol.50, Butterworths, London.

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P.S.Narayana, “Law of Wills”, 1st ed., 2000, Gogia Law Agency, Hyderabad.

Paras Diwan and Peeyushi Diwan, “Law of Intestate and Testamentary Succession”, 2nd ed., 1998, Universal Law Publishing Co. Pvt. Ltd., Delhi.

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Websites

(last visited on 06. 04.2010)

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=mt&vol=01&invol=668\

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wi&vol=wisctapp2%5C2q00%5C99-2635&invol=1

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http://timesofindia.indiatimes.com/articleshow/803409.cms

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http://timesofindia.indiatimes.com/articleshow/885315.cms

http://www.courts.state.ny.us/reporter/3dseries/2005/2005_05900.htm

http://www.dancewithshadows.com/birla_will.asp

http://www.financialexpress.com/fe_full_story.php?content_id=66337

http://www.financialexpress.com/fe_full_story.php?content_id=66429

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Table Of Cases

Dilharshankar Bhachech v. Controller of Estate Duty, Ahmedbad, AIR 1986 SC 1707

Kochu Govindan Kaimal and Ors. V.

Thayankoot Thekkot Lakshmi Amma and Ors., AIR 1959 SC 71

Kuppuswami Raja and Anr. v. Perumal Raja and Ors., AIR 1964 Mad. 291.