Will
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This article is written by Gitika Jain, from Amity University, Kolkata. This is an exhaustive article which deals with the validity of digital wills in India.

Introduction

As the Indian judiciary remains dysfunctional due to nationwide lockdowns taking place continuously, justice remains a distant dream. Covid-19 pandemic has resulted in an increased number of deaths because of which interest in succession planning including through wills has also increased. India has evolved in its digitalization process from aiming to speed up in technological implementations across quotes to making the government officials learn computerisation. Thus, during this hard time the people seeking legal advice in succession planning are facing two problems; dysfunctional court houses and closed law offices. This article aims to discuss all the challenges that arose as a part of development in the concept of electronic wills also known as digital wills or e-wills. India serves many platforms through which persons seeking succession planning can apply for making wills like Will Star, Make My Will,  Law Farm, Ezee, etc. No doubt there are considerable legal challenges while making a will during isolation, be it social distancing or quarantine practices, but certain measures can be taken to avoid complications while drafting e-wills.

Concept of will

We all are well aware of the fact that a will is a legal declaration of the intention of a person desiring to transfer his property or wealth to his subsequent generation or to anyone he wishes for. Will only comes into effect after the death of the maker of the will. The maker of the will is known as the testator and to whom the will is being transferred is known as a testatrix. A will before the death of the testator is a unilateral document that can be amended or revoked any time the testator wishes to do so. The will is governed depending upon the provisions of the religion which the testator follows. The legal declaration made by a Hindu and Sikh or Buddhist is governed by the Indian Succession Act 1925 whereas if a Muslim makes a will it will not be governed by the Indian Succession Act 1925. 

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To discuss more electronic wills it can be said that they are written signed and attested wills through an electronic medium. The testator uses an electronic medium for attaching his or her signature or other important elements of the will. This concept of will is a recent development where a will is reviewed in a proper and secure manner. All the data of the assets, financial investments, properties or any money are accessed digitally after the demise of the testator. 

Essential elements of a will

According to the Indian Succession Act, 1925, a person who has attained the age of majority and is of sound mind can make a will provided he fulfills two important formalities:

  • The will must be a written document and signed by the testator.
  • The will must also be attested by two or more witnesses and signed by them in the presence of the testator. The witnesses must also ensure that the testator signs the will in front of them and acknowledges the same. 

During the current outbreak of Covid-19 pandemic, the requirements for signing and attestation are relaxed to a bit extent. However, in normal circumstances also, such relaxations are enjoyed by soldiers and members of the air force who are employed under the government. Moreover, registration of a will need not be mandatory. 

Legislations concerning will

As already discussed the Indian Succession Act 1925 has its existence for governing the execution of a will and is very specific about the same. This Act requires a written document to be signed by the testator and the witnesses. Unfortunately, law is not pandemic proof and the relaxations which are normally provided for a will cannot be in continuance during the time of Covid-19 because of security reasons of electronic wills. Additionally, there is an Act which allows electronic contracts and excludes certain wills, it is known as the Indian Information Technology Act 2000. Will cannot be permitted to be made for electronic modes like email or documents with digital signatures. Moreover the Indian succession Act 1925 which requires the signature to happen in front of the witness and the testator does not include the presence of any of them through video conferencing. According to Section 65B of Evidence Act 1972 for additional evidence, video recording on the will can be used to make sure that the testator was of sound mind and the will was not made under any undue influence, fraud or question. All these things by Indian Judiciary aggravate the wounds of people who need help in making the will expeditiously. 

Validity of digital wills

Indian Information Technology Act 2000 

In India presently there is no such concept of a ‘digital will’ or testamentary disposition by ‘electronics means.’ But the Information Technology Act provides electronic signature or digital signature with several exceptions from the general rule. The documents that are governed by Section 3 of the Indian Trust Act are wills, codicils, testamentary trusts, negotiable instruments other than cheque, power of attorney or any contract relating to the sale of property. Section 1 (4) of Indian information Technology Act 2000 says that nothing in this Act will apply to any of the definitions of will under clause (h) of Section 2 of Indian succession act 1925. Steering committee on fintech issues also suggested digital legal alternatives to enable cutting cost and time involved. 

Indian Succession Act 1925 and the Indian Evidence Act 1872

Section 63 of Indian succession act 1925 requires a will to be attested by two witnesses and in the presence of the testator. Further, when probate is been obtained, the witnesses or any one of them is required to the post to this fact according to Section 68 of Indian Evidence Act 1872 which states that if the law requires any document to be attested then for the purpose of proving its execution the procedure should take place in the presence of attesting witnesses. Therefore, by merging Section 63 of Indian Succession Act 1925 and Section 68 of Indian Evidence Act 1872 it can be inferred that at least one attesting witness will be required to depose for the will to be considered valid. Where no attesting of witnesses can be found the will has to be proved by the signature of the testator and at least one attesting witness according to Section 69 of Indian Evidence Act 1872. Therefore, it can be said that execution of will in the presence of a witness and signature of the testator in front of those witnesses is mandatory according to Indian Succession Act 1925 and this requirement has to be completed on physical paper and not online. 

Recording of wills

Indian courts accept video recorded bills because it is referred to as additional evidence to prove the validity of the will in the court of law and to prove that the testator was in sound mind and that the will was signed by his free will and not by coercion, undue influence or force. While deciding a case in 1985, Delhi High Court ruled that recording of a will is legally admissible evidence and it is possible to record the entire process of the execution of will to give it more preferable chances of being validated.

Law Commission recommendations

Existence of the problems being faced by people during the pandemic, the Law Commission of India in its 110th report recommended certain relaxation of the rules for an executive will by the persons whose death are caused due to some uncertain calamities. As per this report, the calamity includes epidemic or pestilence. This is just a recommendation which has not been given effect yet and currently the law does not provide any ease of legal formalities related to a will amidst an outbreak such as Covid-19. 

Another instance can be the Scottish law society provided guidelines wherein witnesses can be provided through video conferencing in the presence of a lawyer who can check up on the procedure of execution of will. Additionally, the Ontario government also introduced a guideline which allowed witnessing of will and power of attorney to be conducted during Covid-19 emergency under the Emergency Management and Civil Protection Act. There were two regulations that were made compulsory:

  • Introduction of a technology that would allow the parties to see, hear and speak in the time of the execution of will.
  • Presence of at least one witness in front of the lawyer for a paralegal.

Challenges and solution

The challenges that were arising in the pandemic while making the will were:

  • Gaining access to a lawyer to assist in preparing the will.
  • Finding individuals to witness the signing of the will.
  • Printing of the will for signing.

The first challenge can be solved because many lawyers are working remotely and providing the services of helping the parties prepare a will online, therefore, the testator cannot access a lawyer and needs to save time and can prepare their own will. It is not necessary that a will should be drafted by a lawyer but engagement of a lawyer while drafting a complex will is recommended. There are particular formats laid down to prepare a will; they can also be helpful for the parties to execute the will and additionally, wills need not be in English. 

The second challenge of printing bills can be overcome. There is no written law that the wills must be typed and printed. The testator writes the will on any paper and such wills can be recognised by law if it fulfills all the conditions laid down for the execution of the will. Spelling errors and proper handwriting is recommended.

The third challenge is of finding a witness. This is the most difficult challenge. The testator who resides with other family members can ask any family member to be the witness but the testator who stays alone will find it difficult to fulfill this challenge. If there are no witnesses available then the testator can create their own will when they get access to any witnesses. Witnesses can be any family member who will not receive bequests under the will. Alternatively, the neighbours can be invited to be a witness to the will as well. 

Accessibility to digital wills

In our day to day life, though technology is reshaping according to the situation of the environment, adopting remote working in every field is not possible such as making wills to be made by email or find and witness through video conferencing are the barriers of will that India still needs to overcome. Formation of a contract from electronic means is permitted under Information Technology Act 2000, still it excludes wills. The Indian Succession Act requires the physical presence of the testator while finding the will along with the witnesses and attestation of will by video conferencing are held to be inadequate. 

Case laws

Conclusion

Enabling a system of online will is less time consuming and cost-saving. Not only will it help the people during this pandemic, but also after the pandemic ends. This would be helpful in the long run. Different service providers offer to make wills online, they can be approached for this. By enabling the online system of will-making and seeing that appropriate precautions are taken care of to avoid any future dispute and safeguard any data confidentiality and security concerns. Unsurprisingly people during this pandemic are anticipating their own deaths and are in a rush to make legally enforceable wills. So in order to help them out, the current Indian government should promote use of technology and governance to speed the growth of various industries and help the court in taking the decision of enabling electronic will as enforceable. 

References

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