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The Way to a Will – Ensuring Peace after Your Departure – II


By Anurag Sangal

Joint holdings and nominations are known to be done or not done for operational convenience in real time basis for usage while you are living; rightly influenced by the proximity of the person and/or for tax reasons and/or divorce litigation, etc. Little thought is generally applied at that point in time for its deployment after your life; in terms of inheritance or devolvement to the beneficiary after your death. It is all right for the two to be at cross purposes for the time being till you make your Will.

The Will is your free desire and bequest; not beholden to the administrative and operational convenience of joint-holding and nominations. The best and safe way is to distribute your assets as per your desire and then synchronise the joint-holding and nominations of each asset with the beneficiary of bequest in your Will, i.e., change the earlier joint-holding and nomination of an asset to the name of specific beneficiary of that asset as per your Will. This is known to go a long way towards the ease of transmission of your assets to your intended beneficiaries, removing any irritants and fuels harmony.

By way of abundant caution, legal experts are known to suggest including an appropriate paragraph in the Will to clarify the supremacy of the bequest as per the Will to any administrative and operational aspects and/or legal requirements of the joint-holding and/or nomination.

i) Prepare a Draft Will by writing all that you have thought and done so far on paper, in your own language describing your family, the cause of ownership of your assets, their details, list of beneficiaries, reasons for excluding an immediate heir if so is the case and including all other beneficiaries as well as your reasons for making the distribution as per your will. It is always good to specify that there is no heir and/or beneficiary and/or claimant other than those specified in the Will. The Draft Will does not require any legal drafting in so far as it is a normal bequest without any past baggage of litigation or conflict that requires to be mitigated by a specific mention in the Will, etc.

ii) Show and tell and discuss Draft with heirs if not other beneficiaries is the most common thing not done even while it is the single most important catalyst towards a harmonious execution of the Will once you are dead and gone. Another school of thought suggests avoiding this exercise for the fear of creating differences between heirs for any reason that does not meet their expectations. The choice is between having these differences come up after your death when you are not around to address them or for you to come to know of them now while you are alive; either be able to address and/or solve them or let the heirs accept as a fate accompli. It is always good to have an open mind during this discussion for many a time the suggestions from the heirs are things that you may not have thought of and/or maintained a misconception about.

iii) Appoint an effective Executor to be your hands in your absence and carry out the instructions of the Will in toto, viz., ensuring that the beneficiaries receive their respective bequests in good time and with minimum costs and delay by surmounting and solving any and all impediments that come in the way. Anyone can be an Executor but the key word here is ‘effective’. An Effective Executor should be accessible, available, somewhat up to the work required and have an inherent interest in the well being of your family. There are countless stories of Executors playing truant and creating mischief for their own unscrupulous benefit.
Can one of the beneficiaries be an Executor or he/she should be an independent person? While there is no legal or procedural requirement either way, there are two schools of thought; one maintains the Executor should be an independent person to avoid any conflict of interest while the other thinks that having a beneficiary ensures the Will gets executed in a timely manner since the person is by default safeguarding and hastening his own receipts. Either way, the Executor should be appointed for the reason and potential of his/her being ‘effective’.

iv) Get at least two Witnesses who are reliable in terms of unimpeachable integrity and have an abiding inherent interest in the well being of your family. These are two people who are the only living testaments of your Will being genuine and duly executed by you in their presence. A majority of Wills have been able to be contested in Courts simply because the Witness(s) turned hostile for any reason whatsoever. Can the beneficiary(s) be a Witness too? Certainly Yes. There is no legal and procedural requirement either way and the pros and cons remain the same as for the Executor.

v) Maintain your Will as an open document; it is neither a one-time exercise nor written in stone. You have every right to revise it for any reason whatsoever, no questions asked. It is the last Will that supersedes all previous Wills. It is actually suggested that you revisit your Will, either periodically every few years or in case your choice of beneficiaries and/or priorities change whether dictated to by events such as death, separation, litigation, marriage, birth, etc., or just by your own free desire. It is not mandatory as per law to register a Will; all other things being valid, an unregistered Will executed AFTER a registered Will shall be valid and supersede the registered Will. Nevertheless, a registered Will is known to reduce the hassles in its execution because a registered Will has the Sub-registrar, a government functionary as an additional witness of the Will, thus enhancing its legitimacy to the common eye.

Who needs a Will? Everyone who has assets and more than one legal heir to raise a claim after your death and is desirous of proper and harmonious succession planning. If you die without a Will, it becomes an intestate succession; where your assets devolve upon your legal heirs as per law which also determines who gets how much a portion of your assets, without recourse to your own personal wish or desire.
Normally, it is said if there is a will there is a way; here this is Way to a Will. (Concluded)

(Anurag Sangal is a Senior Chartered Accountant, prominent Educationist and Citizen Activist)