This does not apply in your case, in the case mentioned by you there are two wills in which
The husband and wife therein had on the same day executed separate Wills, with respect to their separate assets as well as with respect to assets jointly held by them, and on identical terms, appointing each other and certain others as executors of their respective Wills. Under the said Wills, each had bequeathed their properties to the other and thereafter to charitable trusts. It was held that (a) a Will, by its very nature is revocable; it is the last desire of the testator; till his last breath, he will have a final say;
the latter Will revoking the earlier Will, will be probated; (b) despite the existence of a mutual Will, the representative under the latter Will will take the property; he however takes the property subject to the terms of the mutual Will; (c) whether there exists any agreement enforceable either in equity or by way of a suit for specific performance, will have to be considered only in the event the probate is granted and noot prior thereto; (d) even when there is such an agreement and one party has died after departing
from it or revoking or altering the Will, the survivor having notice of the breach, cannot claim to have the latter Will set aside since the notice gives him the chance of altering the Will as regards his own property; the death of the deceased party is sufficient notice for this purpose; (e) if however the deceased has stood by the agreement and not revoked or altered his Will, the survivor is bound by it and although probate will be granted of a latter Will made by the survivor in breach of the agreement, since a Court of probate is only concerned with the last Will, the personal representative of the survivor nevertheless holds the estate in trust, to give effect to the provisions of thejoint Will or mutual Wills; (f) mutual Wills may be contained in a joint Will or in separate documents; (g) if the survivor, whether or not, after taking an actual benefit under the arrangement, alters his Will, his personal representative takes the property which is subject to the agreement, upon trust to perform the contract; (h) a joint mutual Will, becomes irrevocable on the death of one of the testators, if the survivor has received benefits under the mutual Will and there need not be a specific contract prohibiting revocation when the arrangement takes the form of two simultaneous Wills but one single document; and, (i) if one single document is executed by both the brothers using the expressions “our property”, “our present wishes”, “our Will” and such similar expressions, it is strong cogent evidence of the intention that there is no power to revoke except by mutual consent.
So in your case, this judgment will not help.
The property shall be divided as per the terms and conditions of the Will and not otherwise until and unless the Will, be declared null and void by the Hon'ble Court.
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