Section 62 - Joint Wills
Persons may create joint wills, which, however, are revocable at any time by either of them or by the survivor. A joint will is regarded as the will of each testator and may be proved upon the death of one. However, if the equitable doctrine of mutual wills applies, the survivor will be treated as a trustee of the joint property. Under this doctrine, there must be an agreement between the testators, but the mere execution of a joint will is not sufficient to establish such an agreement or bind the survivor. If this doctrine applies, a legacy to a legatee who survived the first testator but predeceased the second does not lapse.

Where a joint will is followed by a separate will, which is conditional upon a condition that fails, the joint will is not revoked even if the subsequent separate will contains a revocation clause.

Mutual Wills
The term "mutual wills" is used to describe joint or separate wills made as the result of an agreement between the parties to create irrevocable interests in favor of ascertainable beneficiaries.

The revocable nature of the wills under which the interests are created is fully recognized by a probate court. However, in certain circumstances, equity protects and enforces the interests created by the agreement despite the revocation of the will by one party after the death of the other without having revoked their own will.

Equity does not protect the beneficiary under mutual wills merely because they have been made in almost identical terms. There must be evidence of an agreement to create interests under the mutual wills that are intended to be irrevocable after the death of the first to die. Where there is no such evidence, the fact that the survivor takes an absolute interest is a factor against the implication of such an agreement.

However, if the evidence is clear, for example, if it is contained in recitals in the wills themselves, the fact that each testator gave the other an absolute interest with a substitutional gift in the event of the other's prior death does not prevent equity from protecting the beneficiary under the mutual wills. The agreement must also be sufficiently precise to be enforceable by the court. If the testators are joint tenants and their mutual wills, made pursuant to an agreement between them, are incompatible with the right of survivorship applicable to a joint tenancy, they henceforth hold as tenants-in-common.

Before the death of the first to die, the agreement is a contractual one made in consideration of mutual promises. At this stage, it can therefore be revoked by mutual agreement or even by unilateral breach, giving rise to an action for damages—at least where the revoking party provides such notice to the other as to allow them to alter their will as well. However, on general principles, only the parties to the agreement can sue for damages for unilateral breach.

It is the death of the first to die without revoking their will that renders the will of the survivor irrevocable in equity. Hence, a legatee under the mutual wills who survives the first testator but predeceases the second does not lose their legacy due to lapse.

Written By: S Kundu & Associates
Email: [email protected], Ph No: +9051244073