A Guide to Creating and Understanding a Joint Will

Introduction

• A will is a legal assertion in which a person, known as a testator, transfers his or her asset or property to another person, known as a beneficiary or legatee, upon death.
• Anyone over the age of 21 can make a will, either orally or in writing, expressing how the estate or property should be transferred and shared.
• If a person dies without leaving a will, he is said to have died intestate, and in such cases, his property devolution is guided by his personal laws.

Joint Will

• There are various types of wills, including simple wills, testamentary trust wills, living wills, and joint wills.
• A minimum of two members are required to make a joint will, but any number of members can make a joint will.
• However, a joint will differs from other wills in that it is created and completed by two testators, typically a married couple, who leave all of their property to each other.
• It means that the estate of the testator who dies first is transmitted to the other testator. A will cannot be withdrawn without the common consent of both testators, but it can be revoked when one of the testators dies.

The Joint Will ensures that:

• If one testator dies, the other will inherit everything, and
• When the 2nd spouse dies, everything goes directly to the person named in the Will.

However, the concept of joint will is rarely used in India. There are certain provisions in a joint will that state that a single spouse cannot revoke or change any clause unless the two spouses mutually agree. 

A traditional will can be revoked at any time, but a joint will cannot because it is a legally binding contract.

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Guidelines for Creating a Joint Will

• A joint will can be canceled at any time during the testator’s life or after one of the testators dies.
• To transfer or dispose of property, a joint will can be implemented with each other or a third party in accordance with a proper agreement or contract.
• A joint will can be created with the agreement of another person, but it cannot be revoked by one testator.
• If the surviving testator makes a joint will with another person, the testator benefits from the legal document created between the testator and another person.
• When a testator signs a contract or agreement with another person, the will clause should be specific so that the joint testator cannot revoke the will after receiving benefits from it.

The Joint Will is typically formed when:

• The testator is in a dominant position, but this does not imply that they have complete control over a person’s legal rights.
• Mutual consent is required because the concept of joint will clearly states that one of the testators cannot revoke a joint will.
• At the same time, if it can be demonstrated that no such agreement was reached between the parties, the testator has the right to revoke the will.
• If one testator dies without disposing of his property and without revoking the joint will, the other testator has the right to do so, even if an agreement has been reached.
• However, if it is clearly stated in the agreement that a survivor has been given notice not to alter or revoke the will, he cannot do so.
• Because the will gives him the authority to dispose of his property or make changes to it.
• If the deceased has not changed or revoked his will, the survivor will be granted probate, which will be considered the ‘Last Will.’ The survivor has the authority to carry out the provision of the joint will.

Things to keep in Mind when Writing a Joint Will

The concept of joint will is rarely used because the surviving spouse cannot change the terms and conditions of the will. After all, it may not give him or her the right to dispose of the deceased’s property. The survivor may not be able to change the will because:

• It limits the amount of money that will be inherited by the financially disadvantaged child.
• If the child obtains the property at a young age, they may misuse it or sell it to another person for a low price.

Will registration

• Although will registration is not required in India, it can be done at the testator’s discretion. 
• However, registering a joint will after the testator’s death is difficult (i.e., husband). It can be made by the legal owner of the Property.
• Sub-Registrars should check the validity of the will before registering it. The will is registered at the discretion of the sub-registrar. 
• They must verify the validity of the will because some wills are registered fraudulently.

Procedure

• A joint will can be executed on plain paper with no stamp duty required for execution and registration of the will.
• The government tax must be paid.
• The joint will must be registered before the Sub-Registrar by the testator and two witnesses.
• A Will cannot be registered online unless identity proof such as an Aadhar Card, Voter ID card, Passport, or similar is used.

Conclusion

We hope this blog has helped you understand the overall concept of a joint will. Before making a will, a person must be well informed about all terms and conditions of that specific will. He/she must take legal advice from a professional lawyer because legal advice helps you in determining the best possible way in which the will should be created.