This article is written by Manish Khurana. The article mentions the concept of ‘Wills’, its types and various legal provisions regarding wills and whether video-graphed wills are valid or not.

Introduction

The execution of wills is governed by the Indian Succession Act, 1925. The world has changed a lot since past 95 years, and so has the society. The law has to cope up with the dynamic society otherwise it would become obsolete. Similar is the case with the law governing the validity and execution of wills.

A will is a document whereby a person makes a declaration about the management or disposal of the assets, both movables and immovables, owned by him, pursuant to his demise. Although there is no prescribed format of a will to be valid, the essentials must be fulfilled. Firstly, a legally valid will must contain a declaration about the disposal of the assets. Such declaration must be absolute and unambiguous.

As per Section 63 of the Indian Succession Act, 1925 the testator, who must be a major and a person of sound mind,  shall sign or shall affix his mark to the will, or it shall be signed by some other person in the presence of and by the direction of the testator. As per Section 63(b) the signature of the testator shall be so placed so that it shall appear that it was intended by the testator to give effect to the writing as a will. Section 63(c) lays down the requirement of attestation of will by two or more witnesses that either the testator himself or any person as per his direction under sub-section (a) has put his signature or mark, as the case may be, upon the will. The said Section further makes it clear that no particular form of attestation is necessary.

Types of Wills

Section 65 of the Indian Succession Act, 1925 deals with a different class of wills, i.e., Privileged Wills. It states that “Any soldier being employed in an expedition of engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a will made in manner provided in Section 66. Such wills are called privileged wills.” Further Section 66 specifically states that wills need not mandatorily in writing but may also be made by word of mouth. The privileged wills are special in the sense that there is no requirement of it being in writing, although it applies to a specific class of persons, i.e., only to soldiers, airmen, mariner and that too in special circumstances.

As stated above, the law governing the wills is almost a century old, and there is a need to revise the law. There is a need to include and incorporate another type of wills- Nuncupative Wills. Nuncupative wills are those wills which are not in usual form of writing, but are in other forms such as oral. A Nuncupative will is a will that has been delivered orally to the witnesses of such wills, as opposed to the written form.

The problem with the Nuncupative Wills is that it is almost impossible to prove the existence of such wills, either by the witnesses or by the beneficiaries, however, with the coming up of technology to record such wills the problem is now gone. Now a testator can record a video of himself in the presence of two or more persons who shall be witnesses to such will, and that Nuncupative will can be proved in the courts of law as a valid will. In such Nuncupative wills or video-graphed wills, there is no requirement of putting the signature or mark of the testator because it is the testator himself who is speaking about the intention of disposing of his assets pursuant to his demise. Further, since there is no prescribed format of a valid will in India, if the condition of the testator being major and of sound mind is complete, such video-graphed or Nuncupative will should be perfectly valid will in the eyes of law.

Nuncupative Will

The idea of Nuncupative will is nothing new to our jurisprudence, it has existed since the earliest society. Even in Roman law of wills, there was no requirement of making a written declaration initially. At first, no writing was used or required. The testator gave oral instructions as to the disposition of his property in the presence of five witnesses. These instructions the grantee (familae emptor) bound himself to carry into effect. They were in fact, the conditions of the sale. After a time writing came to be used in connection with this form of will. But a writing, though convenient, was never necessary. Thus it is apparent that there was no requirement of the wills to be in writing initially. In fact, the practice of wills to be in writing gained popularity only in the middle ages. 

In the Anglo-Saxon England there were similar provisions. The practice of disposing property by wills was very common in the Anglo-Saxon society. The disposition by wills was encouraged by the ecclesiastic because most of the wills were in favour of the church itself. Although formal Anglo-Saxons wills were in written form, oral wills were also held valid and were favoured by the clergy. It was only after the Norman conquest and the Statute of Henry 8th that the wills regarding land were required to be in writing, however, the wills regarding personal property continued to be governed by the Nuncupative wills. After the Statute of Frauds in England, the Nuncupative wills were declared invalid if the estate exceeds thirty pounds, besides some other restrictions. After the enforcement of Statue of Frauds, the concept of Nuncupative wills was virtually done away with. 

In ancient India also the position was similar. Under the old customary law, a Hindu could make a will either in writing or orally. Thus Nuncupative wills were held valid. With the enactment of Hindu Wills Act, 1870, for the first time Hindus were required to make wills, codicils, etc in writing and also to sign and attestation by the witnesses. The Indian Succession Act, 1925 repealed the Hindu Wills Act, 1870. Thus, now the Hindus, Buddhists, Sikhs, Jains are required to make a will in writing, affix his signature or mark on such will, get it attested by two or more attesting witnesses; and the oral or Nuncupative wills are not valid wills. However, historically, the oral or Nuncupative wills were held valid. In fact, even today the Mohammedans in India are capable of making an oral wills.

So, the concept of Nuncupative Wills has been the part and parcel of the jurisprudence of wills since the ancient times of our society, and it was started to be discarded only when it became difficult to prove the existence of such wills and the genuineness of such wills. The law of wills has always been so framed so as to provide convenience to the testators, however, the law has been so modified to prevent frauds. Thus it can be deduced that only to prevent the frauds, the Nuncupative wills started declining. However, the causes to refuse the existence of such Nuncupative wills are not relevant in today’s scenario. As discusses above, a will recorded in a video can qualify as a legally valid will. 

Concept of Will under Indian Succession Act, 1925

Society is dynamic and law has to evolve to match the pace of the society. The Indian Contract Act is a classic example of this. The Indian Contract Act was enacted in 1872, which is more than half a century prior to enactment of the Indian Succession Act, and its provisions regarding offer, acceptance, communication, revocation, consideration would have become out dated and obsolete, however, even today about 150 years after its enactment, most of the provisions are similar to that of its original provisions, nothing much has changed in the Indian Contract Act, 1872. The reason is that the judiciary has been liberal in construing and interpreting the provisions of the said Indian Contract Act, 1872 so as to include the new methods of communication, acceptance also. In 1872 there was no internet, nor even the iota of idea of something like internet, even then provisions of 1872 have been given wider interpretation by the judiciary. Similarly, There is no requirement of bringing an amendment in the Indian Succession Act, 1925 to declare a video-graphed will as a legally valid will, it can be done by judicial interpretation to Section 63 of the Indian Succession Act, 1925.

Essentials of Execution of a Valid Will under Indian Succession Act:

1. A will should be made by a person of sound mind, not being minor;
2. It should have declaration regarding disposition of his assets pursuant to his demise;
3. It should be in writing and the testator should affix his signature or mark, or authorize someone to put his signature on such will;
4. It should be attested by at least two witnesses that the testator has affixed his signature or mark on such will.

The requirement of a valid will to be in writing and bearing the signature or mark of the testator creates an impression regarding the existence of the intent of testator regarding disposition of his assets as per the declaration mentioned in the document; and if any person challenges such will the burden to disprove such existence of will shall be upon the person challenging the will. Now if we take the case of video-graphed will, the testator himself is speaking his mind regarding disposition of his assets in presence of two or more witnesses, thus there is no requirement of such will to be in writing. Further, the Supreme Court has declared an electronic record is a document. Thus, the only differentiation now left is that of affixing of signature or mark by the testator and the requirement of attestation by witnesses. The requirement of affixing signature or mark is to ensure that the testator has understood the contents of will and that the same has been made by him only. Now if a person himself is speaking about disposition of his assets pursuant to his demise in a video, the purpose of affixing signature or mark of the testator has already been fulfilled. Similarly, if the testator is speaking in presence of two or more witnesses in the video-graphed will, the purpose of attestation by the witnesses is also complete. Thus there appears to be no hindrance in holding the video-graphed declarations regarding disposition of assets by a person upon his demise as a legally valid will.

Oral Wills

The question regarding validity of an oral will came up before a Division Bench of the Hon’ble High Court of Delhi in “Sunita Shivdasani Vs Geeta Gidwani & Anr.”, and the Bench after considering various judgments of other High Courts, Privy Council dismissed the appeal by holding that “It is quite clear that there is no scope for a Hindu to make an oral or a Nuncupative will after the said date [01.01.1927]”. However, what came up for consideration before the Hon’ble Bench in Sunita Shivdasani was a question of validity of an oral will, and not a video-graphed will. The oral will is different from a video-graphed will. The existence of an oral will is extremely difficult to prove and the courts will not go in such depth to consider the existence of an oral will, however, if a will is video-graphed its existence will not much be in doubt. True, the burden of proving the genuineness of such video will shall be upon the person propounding such will, however, that is a matter of trial; and if the video containing such Nuncupative will is proved to be a genuine one, there should not be any hindrance upon granting probate upon such Nuncupative will, provided other conditions such as of witnesses etc are fulfilled. 

Video-graphed Wills

The question of validity of video-graphed Will came up for hearing before the Hon’ble High Court of Delhi in “Shilpa Khullar Sood Vs Vipul Khullar”. The Single Judge of the Hon’ble High Court was adjudicating upon the application under Order XII Rule 6 moved by the Plaintiff on the ground that the Defendant has raised a plea of existence of video-graphed will in his Written Statement and has admitted that there is no documentary will under the provisions of Indian Succession Act, 1925; and as such the Plaintiff prayed for a decree of partition on the grounds that the video-recorded Will is not a legally valid will under the law of the land. The Hon’ble High Court dismissed the said application vide order dated 13.02.2020 by holding that “… prima facie this Court cannot hold that a Will which is video-recorded will not be a Will in the eyes of law.” Although the above mentioned view of the Hon’ble Delhi High Court is prima facie and is also subject to review by the larger Bench or superior court, the said order dated 13.02.2020 opens a new era in the field of law. 

Conclusion

It can be said that the courts have started acknowledging the existence of a video recorded will, as opposed to previous judgments wherein the courts have held that there is no concept of Nuncupative wills in India, the day is not far when the concept of video-graphed Wills and codicils shall be legally enforceable in India and the ultimate beneficiary in such situation will be common man only. The time is ripe for the judiciary to widen the interpretation of the provisions of the Indian Succession Act, 1925 thereby acknowledging and accepting the video recorded Wills as legally valid and enforceable Wills.

References

1. Nuncupative Wills, Stuart Dixon Jenks, Cornell Law School 1895
2. Hadley Roman Law p.300
3. P. Gopalkrishnan @Dileep Vs State of Kerala (Crl.A. 1794/2019)
4. Sunita Shivdasani Vs Geeta Gidwani & Anr. AIR 2007 Del 242
5. Shilpa Khullar Sood Vs Vipul Khullar CS (OS) 586/2017

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