When asset holding, asset structure and family structure is simple and straight forward, a Will can be the most effective tool to plan your estate. But if there are several branches in your family tree, and assets are spread out across the country (or world), then it makes more sense to create a Private Trust. The most problematic aspect of a Will is that it needs probate (a court certificate which proves that the Will is genuine) after the death of testator, but this is not the case with Private Trusts. Probate is often time consuming, expensive, and a big hassle for the family. Also, probate is a public document, which means that you and your family are inadvertently exposed to the glares of public and unknown people. In contrast, the Trust offers Privacy by circumventing the need for probate.
A will is also susceptible to being challenged in the Court of law by an unhappy heir and the testator cannot express his/ her wish when the matter becomes sub-judice. This often leads to bitterness amongst the families and prolonged litigation. In contrast, the grounds to challenge a trust are fewer and the Courts, in most cases, would not delve in a matter where a Trust is involved with respect to inheritance executed though this method. The Will only becomes effective after the death of the testator but a (Living) Trust can be created even when the person is alive.
Void & Invalid Wills
Will obtained by fraud, coercion or importunity A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. (Section 61 of the Act) Will or bequest void for...
Privileged & Unprivileged will
Privileged wills are those that can be made my members of the armed forces employed in an expedition or engaged in actual warfare and can be made in oral form as well. Unprivileged wills are the wills that can be created by every person other than those who can create...
Construction of Wills
It is not necessary, that any technical words or terms of art be used in a will, but only that the wording be such that the intentions of the testator can be known therefrom. (Section 74 ) Another general principle applied is that the Will is to be so read as to lead...
Revocation and Alteration of a Will
Will being revocable or altered anytime during the lifetime of the testator. A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will.
Void Bequeaths under Will
Transfer to unborn persons is invalid (Section 113) Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the...
Registration of a Will-Necessity
In India, registration of Wills is not compulsory. A Will is not a compulsorily registerable document under section 17 of the Registration Act, 1908, (Act), and according to section 18 (e) it is the testator’s choice as to whether he wishes to register it. There is no...
Law of Wills by an Indian Christian
A fundamental characteristic of property is that it cannot exist without an owner. On a person’s death his property has to vest into someone and the act of transmission of the property is referred to as succession. The law of succession is categorized as testamentary...
Sham Wills
These wills are created for an ulterior motive which is not the testamentary operation and execution of the will. Rather in most cases, these wills are created for an immoral purpose like acquiring a property that does not belong to the claimant, deceiving someone etc. One of the essential features of a valid will is the intention of the testator. These wills are supplemented with all the necessary documents to duly execute the collateral purpose and not to execute the will according to the testamentary opera
Concurrent Wills
Normally a testator prepares a single will for his/her testamentary declarations. The testator according to his wish or for the sake of convenience can make different wills for the property located in different geographical locations. Hence, co-existing wills, dealing with testamentary declarations of a single testator are known as Concurrent Wills.