Mutual Will
Two testators leaving each other reciprocal benefits in their wills, valid only where the same two people are, for each other, both testator and legatee.
In plain language
A husband and wife each write a will leaving everything to the other. Individually, these are two ordinary wills. Together, the workbook gives them a name: a mutual will.
In a mutual will, the two testators confer reciprocal benefits on each other. Each has an absolute benefit, or a life interest, in the other's property. The workbook is precise about when this actually works: the executants must fulfil the role of both testator and legatee for each other. If the testator on one side and the legatee are different people, the structure is not viable as a mutual will.
How it works
Mutual will versus joint will. A joint will is made by two or more people, sharing one physical document. Indian law treats it as two separate wills, each admitted to probate individually, intended to take effect after both testators have died. A mutual will can be written as a joint will, or as two separate documents. The reciprocal-benefit structure is what defines it, not the number of physical documents.
Revocability. Under Section 62 of the Indian Succession Act, 1925, a will can be revoked or altered by its maker at any time while competent to do so. A will made mutually is still, in principle, revocable by either party during their joint lifetime. The workbook does not describe a mutual will as creating a binding contract that overrides this general revocability rule; it simply describes the reciprocal-benefit arrangement while both are alive.
When it fails. The moment the persons who are testator and legatee are not the same two people on both sides, the arrangement is not a mutual will. It collapses into two ordinary, independent wills with no reciprocal structure at all.
A worked example
Mr and Mrs Iyer, married 32 years, each write a will leaving their entire estate, Rs 1,20,00,000 for him and Rs 45,00,000 for her, to the other. Each is testator of their own will and legatee under the other's, a textbook mutual will.
Now change one fact. Suppose Mr Iyer's will instead leaves his estate to his brother, while Mrs Iyer's will leaves hers to Mr Iyer. The reciprocity is broken; Mr Iyer is a testator but not, on his own will, conferring a benefit back on his wife. This is no longer a mutual will; it is simply two unrelated, independent wills that happen to have been signed around the same time.
Because both spouses can revoke their own will at any point under Section 62, if Mr Iyer later remarries and rewrites his will in favour of his new spouse, the earlier mutual arrangement with Mrs Iyer offers her no special protection. The reciprocal promise was not a binding contract.
Why NISM asks about it
Chapter 15, section 15.2.2 (Types of Will), covers joint and mutual wills together, distinguishing the shared-document joint will from the reciprocal-benefit mutual will, and stating exactly when a mutual will is 'not viable'. Expect a question distinguishing joint from mutual wills, and a scenario testing whether a given pair of wills qualifies as mutual.
Common exam traps
- A joint will and a mutual will are not the same thing. Joint describes the physical document, or its treatment as two wills; mutual describes the reciprocal benefit.
- Both parties must be testator and legatee to each other. If the beneficiary named is a third party rather than the other testator, it is not a mutual will.
- Either party can still revoke their own will under Section 62. A mutual will is not automatically an irrevocable contract in this workbook's treatment.
- A mutual will can be written as one joint document or as two separate ones. The physical form does not decide whether it is mutual.
Where this is taught
Free preparation for NISM Series X-BRelated terms
- CodicilA supplementary document that explains, alters or adds to a Will and is read as part of it — executed and attested exactly like the Will itself.
- Concurrent WillTwo separate wills written by the same testator — typically one for property in each of two countries — treated as independent, though both must go to probate together if they are related.
- Conditional or contingent WillA will that takes effect only if a stated condition or contingency occurs — if the condition fails, the will has no legal force, and probate cannot be granted on it.
- Duplicate WillA signed, attested second copy of a Will that the testator keeps for themselves while the executor or trustee holds the original — destroying either copy revokes both.
- Joint WillA Will made by two or more persons, valid in Indian law, recognised as two Wills and intended to take effect after the death of both testators, with each testator disposing of property as an individual Will.