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Will power: Succession planning and the Indian woman

Will power: Succession planning and the Indian woman

23 May 2021

By Neha Pathak

Did you know that a Supreme Court judgement in 2020 clarified that women have an equal right in the assets of their father’s and husband’s Hindu Undivided Family (HUF)?

However, the laws on succession planning have many clauses and sub-clauses. For instance, Hindu laws state that if an unmarried woman without any children dies without a will, her assets will be bequeathed to her father’s legal heirs.

Further, if a Hindu married woman dies without a will, her assets will be passed on to her children and husband. In the case of a childless widow without a will, the assets go to the legal heirs of her deceased husband, or to her parents if the former does not have a legal heir.

Meanwhile, Muslim laws entitle a woman to a share in the assets after the demise of her husband or father. However, the manner in which a married Muslim woman can bequeath her own assets depends on whether the Special Marriage Act or the Indian Succession Act comes into play.

There is no denying the fact that traditionally, in India, succession planning is looked upon as a fiefdom of males. There are still communities and regions where it is given that the assets would be bequeathed only to the male heirs. A woman does not get anything and hence never thinks about making a will or do her own share of succession planning.

Thankfully, the laws are changing and there is a progressive element in the change that makes it all the more important for a woman to know her rights and the manners in which she could plan her succession.

For a woman, this holds all the more importance because at times she might want to ensure that the right person is appointed as guardian for her child. Or maybe she might want to give a portion of her assets to someone who took good care of her but is not a related entity. One cannot stress enough on the point that a well-documented will lowers the probability of litigation.

To start with, let us first understand what succession planning or making a will is. Simply put, it is the process of documenting what happens to your assets in the case of your demise.

For a woman, however, it poses a lot of questions. Do I have a stake in the ancestral property? If I am unmarried and have no kids, can I bequeath my assets to a person of my choice who is not necessarily a relative? If I have more than one kid, can I give a larger portion to one of the kids?

Is there a uniform law that would govern my will or would it depend on my religion, especially when India has succession laws like the Indian Succession Act, the Hindu Succession Act and the Muslim Personal Law?

But that does not mean succession planning or writing a will is a complicated process, and should not be done. It should be done and, more importantly, should be done as soon as possible. A common notion that writing a will is something one should do in old age is a completely misplaced one.

Also, a will made when one is physically and mentally fit reduces the probability of it being disputed or contested.

A properly documented will should state all the minute details of the manner in which the assets would be distributed, when they will be distributed. Also, in certain instances, the reason for the manner of distribution should be stated to minimise the probability of litigation.

While documenting a will, ensure that you include only the assets that are in your name directly and not that may have been bought by you but are in someone else’s name.

In case you decide to give one of the kids a bigger portion of your assets or completely leave out someone from the will, you could add a few points stating clearly the reason for such intent. This also works in instances wherein you want to include an unrelated entity in your will. Clarity is of utmost importance in succession planning.

Ensure that there are at least two witnesses when you are making your will and, for obvious reasons, the witnesses should be younger than the person who is making the will. Also, the witnesses should be individuals who are not the beneficiaries of the will in any manner whatsoever.

Another important aspect of the will is to ensure that the beneficiaries know that there is a will and where they need to find it in case of any sudden demise.

Letting the beneficiaries know the content of the will is also advisable since it would remove the element of surprise and, in turn, reduce the probability of litigation.

(Neha Pathak is Head of Trust & Estate Planning at Motilal Oswal Private Wealth Management)