Your will alone does not matter... A Will does

Dileep ChoksiCC Chokshi AdvisorsIn life we often expect things to go a certain way. Often, if not very often, events like accidents, opinions, people, loyalties, outlook and commitments do not go as expected. Just as in life, so is it after. The two major differences that set apart the latter from the former are that there is no opportunity to remedy and second, that not being there can be a cause of the unexpected.According to a recent study done by an NGO, property disputes and family conflicts seeking a resolution in court with the former constituting 66% of the total cases followed by family matters at 10%.Had these been pre-planned and organised in a life time, things could have been different. Making a Will early is advisable and significant. A managing director and CEO of a financial institution was recently struck by a falling tree in a park while on his morning walk and died en route to the hospital. He owned assets worth $1 billion and died intestate; a situation where a person dies without leaving a valid Will.Similarly, Vice chairman at J.P. Morgan Chase & Co. Mr James B. Lee Jr was at home exercising on a treadmill when he became short of breath and died. He was 62 years old and died intestate. Things get even more complex when such events occur abroad in surroundings and circumstances regulated differently from your home country.To avoid ambiguity and ensure that family relationships do not get disturbed over material issues, a `Will’ is often an alternative to be carefully considered. It is one of the ways to pass on your assets in a most tax efficient manner in accordance with one’s desires. Many a time, people believe that by having nominees for the assets, they can avoid writing a will. This is not always so as courts have expressed some concern on the nature of rights to a nominee.In the absence of a Will, succession laws apply and the assets get distributed amongst legal heirs according to the applicable succession law. This distribution may not be as per the wishes of the deceased person. Also, Succession laws do not consider the relevance of these assets for the heirs based on their tastes and preferences. For instance, one would like to leave their vintage car for someone who is passionate about driving while expensive art collections can be left for the legal heir who appreciates art. A Will is a good tool to execute one’s wishes in absentia. The drafting of the Will must ensure that tax complications of the desired devolution is considered, and must also consider nature of relationships, location of assets among other things. Other benefits that accrue by drafting a Will include an opportunity to make provisions for minor children and children with special needs. It also helps the testator to support a cause close to his/her heart as also address the transfer of offshore assets and at the same time disinherit certain relatives.Apart from Will, formation of Trusts is another effective tool of disposing-off current and future assets. The writing of a will is comparatively simple as necessary compliances are a few.The Key elements of drafting a Will are• It must be dated.• It must be signed by the testator (Person creating the Will).• It must express a desire that the testator’s wishes must be carried into effect after his death.• There must be a disposition of property.• A Will must be attested by two witnesses. A witness need not read the contents of the Will before signing it. A Witness or his/her spouse cannot be a legatee in the Will.• A beneficiary cannot be a witness. A witness’s wife must also not be a beneficiary. However, a beneficiary can be an Executor.• A Will can be changed or cancelled at any time without any formality.• The law does require the will to have been made when the testator is sane and free from any duress or undue influence.A Will can be hand-written on a plain paper and need not be typed, stamped or registered. There is neither a fixed format nor is it necessary for a lawyer to draft it. While there are several formats available for drafting a Will, it is normally customised to one’s own requirement. It is also necessary to appoint an Executor for the Will, in the absence of which the court will appoint an Executor.It is advisable for a person to review the Will every few years to address the changes in circumstances and have a worry-free life.