Planning succession: What's the difference between Last Will and Living Will

A will, a crucial legal instrument, serves the purpose of ensuring the transfer of one's assets and properties post their demise. These assets, which may include real estate properties or any other valuable possessions, can be designated to spouses, children, or other relatives through the will.

Succession planning holds the vital objective of safeguarding an individual's interests throughout their lifetime and, more significantly, after their demise, ensuring the protection of their loved ones' interests. Section 30 of the Hindu Succession Act, 1956, stipulates that Hindus have the prerogative to distribute their assets through a will in adherence to the Indian Succession Act, 1925, or any other applicable law for Hindus.

A will is legally valid and enforceable. Any mentally sound individual over the age of 18 is entitled to draft a will at any time. Despite being a widely employed mechanism, it is important to note that a will is not the sole method available for legally transferring assets.

Last Will vs Living Will

The Last Will and Testament is an official document drafted by an individual detailing how their assets and liabilities will be distributed after their death. A legally binding Will must name an executor and be signed by the Testator and two witnesses. It is crucial to understand that the instructions in the Will become effective only after the Testator's passing.

A Living Will, also known as an Advance Directive, is a legal document that is created by an individual (referred to as the Executor) during their lifetime. This concept is relatively new in India and was officially recognized in a significant Supreme Court ruling in 2018. The highest court in the country acknowledged the 'right to die' as a fundamental right and permitted this through the use of a Living Will, subject to certain conditions.

The primary goal of a Living Will is to outline the type of medical treatment that an individual would desire or not desire to sustain life in situations where they are unable to communicate their preferences. This may include decisions regarding artificial ventilation support, feeding tubes, and other medical interventions.

What's the difference

The Last Will and Living Will serve different purposes. The Last Will pertains to posthumous matters, detailing the distribution of assets and property after the testator's passing. In contrast, the Living Will is created while the individual is alive, establishing their medical care preferences in the event they are incapacitated and unable to communicate. The Testator is the one who creates a Last Will, while the Executor is responsible for drafting a Living Will. A Living Will becomes especially crucial for individuals facing terminal illnesses or deteriorating health conditions, as it alleviates the burden on family members when making challenging decisions.

"Section 30 of the Hindu Succession Act, 1956, is an assertion of the general rule that Hindus may dispose of their property by way of WILL in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus. The concept of a Living WILL or an Advance Medical Directive permits family members to respect the wishes of a terminally ill patient and to direct the doctors to end their medical treatment. Additionally, it facilitates people to record their wishes when it comes to the family person/guardian that they trust to make the ultimate decision for them. The directive also acts as a relief for the family members, knowing that the person has entrusted them or given them the authority to make a decision, as stated by them in the directive when they were in a conscious state before such an unfortunate incident," said CA (Dr.) Suresh Surana.

What's the purpose

The legality of a last will only kicks in upon the individual's passing, whereas a living will is activated while the individual is alive but unable to make decisions. A last will can streamline the probate process, while a living will can provide guidance to family members during challenging situations.

Surana added: "A will exists in perpetuity and is valid for time immemorial after the death of the testator and there is no bar on its enforcement. The beneficiary in whose name the will is written gets an indefinite right to get it executed anytime after the death of the testator as the WILL remains valid for time immemorial. The Last will is a legal document specifying the distribution of belongings, assets, and property after the testator's death. A will once made cannot expire suo-moto (on its own). The only way a WILL can expire is when the testator revokes his own-made WILL or makes a new one declaring the previous one void/invalid. In the case of a last WILL and testament, having one can also make the probate process go more smoothly. The executor is responsible for gathering property, keeping financial records, and paying any outstanding debts and taxes after which the executor can distribute the decedent’s property to beneficiaries as described in the WILL.