Your Questions Answered: How do I ensure my father’s will is safeguarded from unwanted claims?
Creating a will requires mental capacity, attestation, and registration for safeguarding and preventing disputes.
Q. My 55-year-old father is in the process of writing his will. How do I ensure he writes a will that can be safeguarded from unwanted claims from relatives? Can he change his will later?
The will is a simple document and can be made by anyone who is an adult and is of sound mind. The law simply requires the document to be signed by the person making the will (testator) and attested by two independent witnesses.
Here are a few tips and tricks to ensure that the will is safeguarded:
Mental capacity: We would recommend having the testator’s doctor certify that the testator is of sound.
Genuineness of the will: The testator may choose to register the will if he believes that the chances of contest are high. Registration provides a verification of the testators' signature and hence a contest alleging that the signature is forged would be difficult to uphold in the court of law. However, it would always be a good practice to have any subsequent codicil also registered if the original will has been.
Disgruntled heirs: If the testator is excluding certain relatives from the will, the will should specify the reasons for such decision.
A testator may change his will as many times as he wishes. However, the previous wills made should be destroyed and there should not be different copies of it in circulation. If the assets are sizeable, do consider creation of a private trust or lifetime gifts such that the of security of that asset to a beloved is retained as well as the asset does not deplete in value if a contest is made. Do name an executor(s) in the will as well as alternate executors in a situation where an executor is unwilling or incapable of acting. Bequests should also take into consideration that the legatee may pre decease the testator and hence alternate bequests would also be preferable to mention.
Do seek professional help while drafting the will in order to ensure all guard rails have been kept.
Q. My business has been booming and I have recently entered the HNI category, how do I plan my estate? Do I need a lawyer to help me?
As an HNI (high net-worth individual), do pay attention on preservation of your wealth as much as you did to create the same. Would be best to understand the avenues available through a professional advisor. You may want to undertake a comprehensive estate planning exercise for the following reasons: (a) safeguarding wealth from future disputes; (b) preserving wealth for future generations and preventing misuse; (c) planning succession to business; (d) protecting wealth from any business or matrimonial liabilities; (e) asset protection.
There are several tools for estate planning:
Wills: A will is the simplest tool to execute and is a must for every individual. By having a will in place, a person is provided with the discretion to choose their heirs as well as the proportions in which the assets are divided which is otherwise not available under applicable intestate succession laws and at the same time maintain control on the wealth through lifetime.
Trusts: Trusts are recommended as they are powerful tools to safeguard assets from liabilities and from maintaining a clear succession in the family. For business owners who are expecting expansion or a potential listing, by planning at the right time, the trust can be structured with as much flexibility as may be desired.
Offshore planning: If assets are outside India, do undertake succession planning for the same by creating a will or a trust.
Family charters and shareholders agreements: A shareholders agreement may also be recommended to govern the rights and obligations of family members who hold business interest. For joint family businesses, a family charter may also be considered which is an overarching document which also governs softer aspects such as role of extended family members in the business, etc.
Charitable planning: You could consider having your give back plans properly structured in your lifetime.
Bijal Ajinkya is Partner at Khaitan & Co and Varsha Reddy is Senior Associate at Khaitan & Co.
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First Published:21 Oct 2023, 11:25 AM IST
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