Where There is a 'Will' There's a Contest

 It is a frequent question whether a Will is a robust tool to pass on the assets of the testator to the heirs.  Effectiveness of a Will, which comes into effect after the death of the testator, depends on testator’s situation. This note will analyse the factors that have an impact on the efficacy of a Will.

 A Will can be an effective succession planning tool when the testator very carefully chooses the time, the beneficiaries and asset to be distributed.  These critical issues if handled judiciously leaves no scope for ambiguity and thus ensures no need for another Will in the future. However, a Will’s effectiveness may be compromised when the testator makes multiple Wills at different points of time. Multiple Wills by a testator introduce an element of doubt about which Will, amongst many, is genuine and would take effect.  In such a situation, the possibility of challenge by a disgruntled heir is heightened because different Wills may have different beneficiaries, or same beneficiaries but with different inheritance provided in the Will. An heir who has either been left out or is disadvantaged gets sufficient incentive to challenge the Will on the grounds of genuineness, capacity, coercion, fraud etc. Any challenge introduces delay in the distribution of the assets and this may compel other heirs to agree on some compromise.

Further, a Will takes effect through a legal process leading to the issuance of a probate. Once a probate is issued by the court, it is not possible to challenge the Will and the assets are to devolve as per the probate. When the testator owns assets in a single jurisdiction (thus the probate process to be completed in a single jurisdiction) a Will again may prove to be useful.  However, when a person holds assets in multiple jurisdictions, in addition to take the probate in the primary residential jurisdiction of the testator, certain legal process (resealing of the probate) must be completed in each of the jurisdiction where the testator’s assets are situated. If the resealing is not done, then the distribution of assets situated in that jurisdiction can be challenged by any other heir left out from that asset.  The process of resealing can be lengthy as well as expensive as it depends on the law of each relevant jurisdiction where the assets are situated leading to delay in distribution of assets. So, the jurisdictional distribution of assets becomes a material factor in the effectiveness of a Will as a succession planning tool.

A Will can be used as a succession plan tool only for those assets which are held in the single name of the testator since as a legal owner he can pass on the assets as per his wish. In case, the assets are held in joint name with the right of survivorship, such an asset cannot be bequeathed by a Will. The reason is that such asset will anyway devolve on the surviving joint owner. 

When a testator desires to provide for the guardianship of a minor child after the demise of the testator, a Will can again be a good resource to safeguard the interests of the minor child.  The testator can ‘will’ a trusted person as the guardian to the minor child to ensure safe custody of the inheritance during the minority of the child and then to be bequeathed to the beneficiary on attaining adulthood. In case the testator does not appoint a guardian for the inheritance of the minor child, then court will get involved to appoint a guardian which may introduce uncertainties.

There are some situations when a Will is unlikely to be an effective succession plan. For example, when a testator has step-children from multiple marriages. In such circumstance, the possibility of dispute arising among the heirs is quite common and therefore likelihood of a challenge to the Will is high. This situation will be further exacerbated if the testator has made multiple Wills during his life time and / or holds assets in multiple jurisdictions. Further, a Will made when the testator suffers from severe illness might not serve the purpose. In such a situation, it becomes easy to challenge the validity of the Will on the basis of mental capacity (soundness of mind) of the testator and/ or coercion.   

As mentioned above, a Will requires certain legal process to be completed to get the probate and make it executable.  The issuance of a probate is a judicial process and, hence, open to public. This means that the contents of the Will will not remain private once the legal process is commenced. So, a Will is not suitable for those people who have an overriding objective to keep their succession plan private and do not want the heirs to go through the juridical process to get access to testator’s assets.