In Dr. K.S. Palanisami (Dead) v. Hindu Community in General and Citizens of Gobichettipalayam and others, [2017 (13) SCC 15], the Supreme Court defined a joint will as a single testamentary document executed by two or more testators.
A joint will functions as the individual will of each testator. Upon the death of the first testator, the instrument is probated as their will, disposing of their separate property. Following the death of the surviving testator, the same document is probated again as the will of the survivor, provided they have not executed a subsequent will. Such wills are now uncommon.
In contrast, a mutual will arises from an agreement between two or more persons to execute wills with reciprocal provisions. The defining feature of a mutual will is a binding contract not to revoke it. Upon the death of one testator, the will becomes irrevocable by the survivor, particularly if the survivor has accepted benefits under the deceased’s will.
A joint will is revocable by either testator during their lifetime. However, it can become irrevocable if it also contains a clear agreement not to be revoked, thereby taking on the characteristics of a mutual will.
Courts consistently hold that the decisive factor is the testators’ intention. This intention is ascertained from the specific language of the will and the surrounding circumstances to determine if a binding agreement not to revoke existed.
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