Explained: All about various Wills for smooth wealth transmission

In the year 1948, Cecil George Harris, a local farmer in the small town of Rosetown in Saskatoon, Canada met with a tragic accident. While working in his farm during a heavy storm, he fell from his tractor and got trapped beneath it. After bleeding for almost 10 hours and with no sign of help, he soon realized he won’t be able to survive. At this moment, he pulled out his pocketknife and scratched on the tractor “In case I die in this mess, I leave all to the wife.” He died in the hospital the same night. The courts considered the scratching as his last desire written under extraordinary circumstances and accepted this as his last Will. The cut-off piece from the tractor is still displayed in the Law Library of the University of Saskatchewan, Canada. Though not very popular, this kind of Will is technically called “Holograph Will” – written by hand where witnesses are not mandatory and can be considered valid after verifying the handwriting and circumstantial evidence. There are a few other interesting and important types of Wills.

Privileged and unprivileged Will

The option of a Privileged Will is available only to people in Armed Forces and while engaged in warfare or in a warlike situation. Considering the associated danger of sudden death, lack of time, uncertainty of events in their line of duty, certain formalities of a standard Will are relaxed in a privileged Will. A handwritten privileged Will may be valid even if it is not signed by the testator or witnessed. In extreme circumstances, even an oral privileged Will can be valid, provided the testator has clearly communicated his/her bequeathal intentions in the presence of two witnesses. All other Wills, which are not privileged, are termed unprivileged Wills. These are the most common and standard Wills which should necessarily be in writing, require the testator’s signature, date and two witnesses to be considered valid.

Joint or Mutual Wills are the most preferred options when married couples decide to write their Will together. In a Joint Will, both the testators execute a single common Will and jointly distribute their properties as per their wishes. But Mutual Wills are two separate but similar Wills, through which both bequeath their properties to each other. Though it may seem convenient for a couple to make a single joint will, because it is jointly signed and cannot be altered by the surviving spouse, it can cause problems for the surviving spouse as it ties up the property and restricts what he or she can do with it. On the other hand, Mutual Wills, being two separate Wills, provide flexibility to the surviving spouse for making changes to the Will as per his/her desire.

Conditional or contingent Will

Conditional Wills are made when an individual would like the Will to become effective only if a certain pre-specified event mentioned in the Will were to occur. The condition should be specifically mentioned in the Will and should be reasonable and logical. Generally, conditional Wills are made with the intention of encouraging or discouraging the legatee from taking a particular action or acting in a particular manner. For example, a Will can be written by a father bequeathing assets to his son, but made with the condition that it will be effective only if the son marries a girl of Indian origin.

Living Will

Unlike all other Wills, a living Will – also termed as Advance Medical Directive (AMD) – does not bequeath property upon the demise of the testator. Instead, it captures desires and instructions of the author given to a close and trusted person on the type of medical care that one does or does not want to receive in the event he or she is in coma, terminally ill or simply not in a position to communicate.

Testamentary Trust Will

In a Testamentary Trust Will, the testator directs his/her executor to create a Trust as per directions provided in the Will. Such Trusts created out of Wills are termed as Testamentary Trusts. Generally, the intent in this kind of Will is to bequeath the assets to the testamentary Trust instead of legatees. Testamentary Trust Wills are commonly used for planning for a situation when both the parents die, leaving behind a minor child who won’t be in a position to handle his/her finances.

Writing a Will is an extremely important activity, and it is highly advisable to take proper guidance from an experienced professional who would ensure that the objectives of testator are properly captured and the document is valid. Eventually, whichever type of Will you choose to write, what is important is that you write one and write it well!