There has been lacuna in the Indian legislation in respect of laws relating to a Joint will. However, the concept of Joint wills has been recognized widely by the Indian Courts vide various judgments. The hon’ble supreme court of India in the case of Dr. K.S. Palanisami (Dead) vs Hindu community in general and citizens of Gobichettipalayam and others has stated that “a joint will is a will made by two or more testators contained in a single document duly executed by each testator, disposing either their separate properties or joint property”. Accordingly, a will which is made by two persons for distribution of their joint/separate properties can be defined as a joint will. However, in most of the cases joint wills are executed between spouses i.e. a husband and wife. In view of the aforesaid, a question arises, Can joint wills be executed by two individuals, who are not husband and wife? To clarify our question as to whether two individuals who are not husband and wife can execute a joint will, it is vital to identify the essential of a Joint Will. It has been defined by the Hon’ble Kerala High Court in Narayan and Anr. V. Sreedharan,
“A joint will is a single testamentary instrument constituting or containing the will of two or more persons based on an Agreement to make a co-joint Will. Two or more persons can make a joint will, which if properly executed by each so far as his property is concerns is as much his will. That will come into effect on his death”.
In accordance with the aforesaid definition it can be conferred that, the minimum no. of testators that are required in a joint will are two. It has further been quoted in Kuppuswamy Raja V. Perumal Raja it was observed that, “a joint will is by a single testamentary instrument containing the wills of two or more persons and jointly executed by them, while mutual wills, are separate wills of two or more persons which are reciprocal in their provisions and executed in pursuance of contract or agreement between two or more persons to dispose of their property to each other to third person in particular mode or manner”. In view of the aforesaid definition, two or more persons can make joint will, on agreed terms. In view of the aforesaid, the definition of joint wills only state that two or more persons can execute a joint will. The definitions have not specified that the two or more testators executing a joint will have to be husband and wife. Hence, since there is no clear legislation in India, with respect to the same it can be conferred from the various definition as envisaged hereinabove that, a joint will can be executed by two individuals who are not husband and wife.