The Private Client team at Cyril Amarchand Mangaldas shares their comments and opinions in the following article which was published by Livemint and the online edition of the same can be found here.
A disturbing trend from the second wave of covid is the increasing number of orphaned and vulnerable minor children across India. While some minors have lost both their parents, others are in a situation where their surviving parent is unable to take care of oneself or the family. Families are often confused and scared about what to do in such scenarios. Parents admitted to certain hospitals are being made to sign declarations about their children’s ‘custody’ if they do not survive.
As a parent, your primary concern will always be the welfare of your child. Irrespective of your net worth or age, you must execute at least a basic Will to deal with your estate and the guardianship of your child. Within this Will, you need to nominate a guardian for your child. Guardians assume a fiduciary role as they are responsible for handling a child’s finances and welfare till he/she turns 18. A parent is considered as a natural guardian of a minor (subject to rules under personal law). However, a guardian may be appointed under the Will of the last surviving parent (testamentary guardian) and in the absence of the same, by a court’s order (appointed by court).
Natural guardian: From a Hindu law perspective, the natural guardian of a minor (both biological or adopted) shall be his/her father. After the father’s death, the natural guardian of a child would be his/her mother. This sequence of guardianship happens automatically under law and cannot be changed unless mandated by a court order.
Testamentary guardian: A testamentary guardian can be appointed under the Will of the last surviving parent. Making this choice is perhaps the most important decision of your life; this is the person who will look after the child when both parents are dead. Both parents need to have a transparent discussion and mutually agree who they will nominate as the guardian under their respective Wills. Several young couples instinctively consider their parents or sibling for this role; but each situation has its own nuances. Once decided, the parents should inform the concerned person and seek their consent. It is a significant responsibility and it should not spring up as a surprise.
Appointed by court: In the absence of a named guardian in a Will, the provisions of the Hindu Minority and Guardianship Act, 1956, are applicable (for Hindus). Here, a family member can approach the court for appointment of a guardian. The court, when deciding who to appoint as the guardian, takes into consideration various factors such as the age, gender, wishes of the parents and the personal law of the child. The welfare of the child is to be given utmost importance. This process may not always work in the best interests of the child as a minor is left at the mercy of relatives (or even non-family members) and the over-burdened judiciary. It can be a tricky situation when a relative may have a vested or a bad faith interest in a minor’s inheritance. In this regard, it is key to identify a bona fide person in advance.
As mentioned, it is crucial to make at least a basic Will and clearly nominate a testamentary guardian. Try and pick someone younger than you, who perhaps has a similar-aged child. Dying intestate (i.e. without a Will) will not only lead to an undesirable distribution of assets, but also leave minor children without a chosen guardian. Hence, with a Will, you can direct the distribution of assets and ensure the welfare of your child.
Parents can also consider creating a trust structure (testamentary or during your lifetime) for the benefit of the minor. If the guardian is appointed as a trustee, he/she would also owe fiduciary duties towards the trust’s beneficiaries (i.e. minor children), providing another layer of protection and care.
Due to covid, parents need to put the long-term welfare and security of their children at the centre of their planning. Taking the steps discussed here will help you sleep better at night knowing that your children will be looked after even if something happens to you or your spouse. More nuanced plans can be made once things improve, and it would be wise to consult an experienced attorney to help structure a robust succession plan.