(Also read 'Good WILL Hunting- The Importance of Making a Will - Sample Will Format' Sample Format of Mutual/Recirocal Will can be found below.)
One of the Fundamental Distinctions between a Will
and a Contract is Privity. The beneficiary to a Will does not and cannot sign the
Will of the Testator. There is no proposal or acceptance. However, there is one
type of Will, in which the Testators must sign and the they also stand
a chance to be the beneficiaries. This is a mutual/reciprocal Will. This is where two or more persons make a
mutual will where reciprocal benefits are conferred upon each other i.e.
similar rights are given to each other in each other’s property. For example, A
bequeaths all this property to B, and B makes a Will giving all his property to
A.
It is well settled that a mutual/reciprocal will
cannot
be revoked by one of the persons after obtaining the benefits of the
Will on death of the other person. Neither does marriage of one of the persons
revoke the Will. An most importantly, both persons can agree to make the will an irrevocable one. This is rather a unique concept in Law of Wills. The irrevocability adds to the contractual element in Mutual WIlls.
It was held in Kuppuswami
Raja And Anr. vs Perumal Raja And Ors (AIR 1964 Mad 291) “In
describing a Will the adjective "Mutual" or "reciprocal" is
used to emphasise and denote the contractual
element which distinguishes it from a joint Will.” (The case can be found here.)
The Court also held, :
"Where
two persons have made an arrangement as to the disposal of their property and
executed mutual Wills in pursuance of the arrangement, the one of them who
predeceases the other dies with the implied promise of the survivor that the
arrangement shall hold good; and if the survivor, after taking a benefit under
the arrangement, after his Will, his personal representative takes the property
upon trust to perform the contract,
for, the Will of the one who has died first, has, by the death, become
irrevocable. But, on the contrary where the one who dies first has departed
from the bargain by executing a fresh Will revoking the former one, the
survivor, who has on the death of the other party to the arrangement' notice of
the alteration, cannot claim to have the later Will of the deceased set aside
or modified, either by way of declaration of trust or otherwise."
Therefore, a mutual/reciprocal Will,
although, under the heading of ‘Will’ and in the form of a Will, can be in
reality a Wagering Agreement, which would due to being in the form of a Will, be
enforceable by Law.
Currently, it is well that it is not unlawful or against public policy
to make mutual wills, at least in those situations where they are made by a
person and the spouse, or where there is a relation between the makers which
imply moral obligations of mutual support, It has been suggested that between
strangers, such an arrangement might be held to partake too largely of a mere
wager or gambling[1] (An interesting article on this topic can be found here.)
 |
| The concept of a Tontine has been used in many Fictional Adventure and Mystery Stories. With Mutual / Reciprocal Wills being lawful, fiction is not far from reality |
It is submitted by the author that mutual Wills not be allowed by law,
for they take on the nature of what laymen know as a Tontine. A Tontine in its actual sense means where a a group of people pay an agreed sum into a fund, and thereafter receives an annuity. As members die,
their shares devolve to the other participants, and so the value of each
annuity increases.
There is, however, another meaning which has provided the main plot for several murder and mystery novels, on the death of the penultimate member a certain sum, which has been kept in safekeeping or which has remained untouched and which accumulates interest over the years, goes to the last survivor who gets the sum plus the compound interest. Although usually found in fiction, such cases are possible if mutual/reciprocal wills are allowed. It makes it easy for two people to enter into a bet against who dies first. Till then, the Court must be careful with Mutual / Reciprocal Wills and see what the actual intent of the parties are from a reading of the Will and the relationship between the parties.
There is, however, another meaning which has provided the main plot for several murder and mystery novels, on the death of the penultimate member a certain sum, which has been kept in safekeeping or which has remained untouched and which accumulates interest over the years, goes to the last survivor who gets the sum plus the compound interest. Although usually found in fiction, such cases are possible if mutual/reciprocal wills are allowed. It makes it easy for two people to enter into a bet against who dies first. Till then, the Court must be careful with Mutual / Reciprocal Wills and see what the actual intent of the parties are from a reading of the Will and the relationship between the parties.
Also read article on Validity of Unregistered Will.
Sample
Indian Mutual/Reciprocal Will Format:
1. We, the undersigned ____________________ and _____________aged
about ___ and ___ years respectively,
_________________ and ___________ by profession, residing at __________________ and ______________ respectively. We hereby
revoke any other Will or Wills of earlier dates that may be claimed to
be in existence, .
2. We state that We are in sound in mind and We are
making this will because We do not wish to cause difficulties to my
beneficiaries by dying intestate. We make this will on my own and without
pressure or influence from anyone or each other .
3. We give to one another all the rest, residue and remainder
of our property of any kind whatever, including property held now and property
that we may be entitled to in the future.
4. In the event that we die in a common disaster, or within
10 days of one another, we give the rest, residue and remainder of our property
of any kind whatsoever, including property now held and which we may be
entitled in the future to ____________
5. We appoint the survivor of us to act as the executor of
this Will, and direct that they shall serve without bond. In the event that we
die in a common disaster or within 15 days of one another, we appoint
_____________ to act as our Executor, who shall also serve without bond.
6. We declare that this mutual
will is not made pursuant to any special agreement that such provisions have
been made in consideration of the other one of us similarly providing, and each
of us reserve to ourselves, severally, the right to revoke this will in any
event without notice.
Signature and Name of Testators:
(i)_______________________
(ii)__________________________
In our presence, signed this instrument after
declaring to us that it is their Will
and We now sign in their presence and of each other as witnesses on this
abovewritten day and year.
Signature of witness: 1.
Name: _________________________ Address
_______________________
Signature of witness: 2
Name: _________________________ Address
_______________________
(The above Will is only a Sample Indian Mutual/Reciprocal Will format. The Format of a Reciprocal/Mutual Will may change from case to case. Make sure you contact an expert for the same.)
[1] Anderson
v. Anderson, 181 Iowa 578, 164 N.W. 1042 (1917);
Herman J.
Glinski,Wills - Joint and Mutual - Contracts to Devise, 24 Marq. L. Rev.
42 (1939).
Available at:
http://scholarship.law.marquette.edu/mulr/vol24/iss1/6
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