Mutual wills are written by spouses or committed couples in which they make wills following a mutually binding agreement. As mutual wills are binding, the main purpose of such wills is to ensure the estate and properties are inherited by the agreed beneficiaries. Each of the partners prepares a separate will with provisions for the other party on similar terms dealing with the same property.
Points to remember
- Mutual wills must be executed with a binding contract
- The properties and assets must be passed on to mutually agreed beneficiaries
- The will cannot be modified or revoked without the consent of the other party
- Upon the death of one partner, the survivor cannot alter the provisions of the will or change the mutually agreed beneficiaries.
- If the survivor wishes to prepare a new will, he/she must terminate the mutual will agreement
- It is advisable to prepare the wills in consultation with lawyers to avoid any legal repercussions in the future.
- A mutual will ensures the assets of the deceased are passed on to their children and loved ones rather than a new spouse if the surviving partner remarries.
- The contracting parties have the advantage of choosing together on how the properties will be dealt with by the survivor.
- A mutual will is the best option for persons who remarry and have children from the first marriage. In such cases, they can make provisions for the new spouse and also pass on some shares to the children of their previous marriage.
- The survivor of the mutual will-maker has the liberty to deal with the assets during their lifetime.
How to prepare a mutual will
Below are the steps you need to follow to create a will.
- Make a list of all the significant assets. If married, the spouses can make a separate will or together. Only assets that are jointly owned by both couples together can be passed on.
- Decide on the mutual beneficiaries. It is always better to choose contingent beneficiaries. If the initial or primary beneficiaries are deceased or refuse the inheritance, the alternate beneficiaries are entitled to their shares subject to conditions on the will.
- Next, choose an executor. As the name suggests, an executor is a person the testators nominate to handle the assets. Executors can be family members or close friends and are responsible to carry out the terms as mentioned on the will.
- Decide on who will be the guardian to children, if they are minors. Also, make sure to authorize a person to handle the property that the children inherit.
- Prepare the will in adherence to the laws with the help of attorneys and legal professionals.
- Sign the will in the presence of two witnesses. If using a self-proving affidavit get the signature notarized. Notarizing a legal document proves the authenticity of the signature appended to legal attestations.
- Seal the will with the cover containing your name and deposit it with any registrar to ensure safe custody. This is the provision under the Indian Registration Act, 1908.
How to execute a mutual will in India
Execution of a will means carrying out the terms and instructions of the will as stated by the testator. An executor is entrusted with the responsibility to manage the affairs, file for will probate, make distribution of the properties as per the wish of the deceased, protect the interests of the beneficiaries and act on behalf of the testator at any time.
According to the Indian Succession Act, an executor is granted a wide range of powers to deal with the estate under varied scenarios. Following are the steps to execute a will:
- Upon the death of one of the partners, the appointed executor of the survivor must file a probate petition in the court
- The court asks the legal heirs of the deceased for any objections
- If no objections are found, the court will grant the probate.
How to get a will probate
To obtain will probate or the letter of the administration, the legal representative or the executor appointed by the testator must:
- Apply for probate in the High court along with:
- Time and details of the testator’s death
- Details of the assets
- The original will of the testator
- The Court then issues a public notice in newspapers inviting any objections
- Upon being satisfied with the proof of valid execution of the will and its authenticity, the Court grants the probate or the letter of administration.
Frequently asked questions
Yes, any type of will should be probated under the Indian Succession Act. As per Section 213 of the Act, “no executor can establish any right in any Court, unless a Court of competent jurisdiction has granted probate of a will, or has granted letters of administration with the will.” This applies to will makers who are either Hindus, Buddhists, Sikhs, or Jains. The Section shall not apply to Christian and Muhammadan will makers.
Although it is not mandatory for a will to be registered, it is always best to get it done. You can register your will any time with the sub-registrar. It can also be kept sealed in safe custody.
Any couple can go in for a mutual will for better planning of their estate. One of the main conditions is that neither of the individuals can alter the will without intimating the other in advance. Even upon the death of one person, the terms of the will cannot be changed. This may be subject to the court in certain circumstances. Both parties must agree to the mutual beneficiaries and mutual terms as on the will and the mutual will agreement.
Appointing the right executor may be a critical task, especially if your assets and properties are widespread in different locations. The Indian Succession Act does not hold any provisions for an executor. Hence you can choose whoever you want either your siblings, friends or family members.
Yes, per Section 141 of the Act a legacy can be bequeathed to a person who is named an executor of the will.
A probate is a copy of the will with the court seal. A probate is granted only to the executor, as named in the will, for the administration of the testator’s assets. In case the testator has not appointed an executor or has died intestate without leaving a will, the court grants the letter of the administration rights to the beneficiaries or legal heirs.
Note: The information given here is generic and is subject to specific instances. Please consult with our expert lawyers and legal professionals for writing and executing your will.