A Will is one of the most frequently used tools in the process of succession planning. A Will is made by testators at the appropriate stage(s) of their life, and usually benefits family. However, a fear that looms large in their mind is the risk that someone may challenge the Will, causing it to get stuck in the labyrinth of the Indian court system. This fear is likely to be more acute when the testator knows that there is a specific person, either within the family or outside, who may challenge the bequests (or lack thereof!) under the Will. Unfortunately, there are many instances of such messy and protracted disputes. The main victims who suffer in these disputes are the testator’s family – they will not inherit the estate until the dispute is settled. Hence, the testator’s fears are completely justified.
To avoid these consequences, one option the testator can explore is entering into a contractual waiver with such persons – whereby any one or all of the beneficiaries (those who may benefit under the testator’s will, family or non-family) forego their right to challenge the Will. This would mean that the family can inherit the estate smoothly and quickly, without dispute or hassle.
But why would a beneficiary agree to do so? It ultimately comes down to a commercial decision and negotiation. Beneficiaries will be concerned that certain assets or amounts from the estate should come to them (for reasons which may not always be robust, or which may withstand a deeper legal scrutiny). If the testator can agree to meet such requests through the Will, or even by way of a lifetime transfer, then the beneficiaries may be willing to enter into a contractual waiver of their right to challenge it. But this is a commercial decision that needs to be taken by both parties. Testators are ultimately buying peace for their family after death. This article further explores the legality and practical aspects of such a waiver.