This article is written by Prathamesh More, pursuing Diploma in Advanced Contract Drafting, Negotiation, and Dispute Resolution from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Smriti Katiyar (Associate, LawSikho).
Table of Contents
The Wills of the people of India except the people belonging to the Muslim Community, are governed by one of the oldest laws called “The Indian Succession Act, 1925”.
A Will is defined under Section 2(h) of the Indian Succession Act, 1925, as the legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death.
The validity of the Will does not depend on stamp duty or notarization as both measures are not required. The testator can register the Will on his/her own wish, but if he/she does not register the Will even then it does not make any difference in its validity. Although, if the testator has made two Wills, one registered and the other one non-registered then the former shall prevail as the valid one.
What is known as unprivileged will?
A Will can be executed by any person of sound mind but it should comply with the conditions of Section 63 of the Indian Succession Act, 1925, in order to execute a valid Will:
- The Will should be signed or affixed with a mark of the testator or the Will must be signed by some other person in the testator’s presence and under his directions.
- Such a signature or mark must be so placed that it appears that it was intended to give effect to the writing as a Will.
- The Will must be attested by at least two witnesses as under:
- Each witness must have seen the testator sign (or affix his mark) or seen some other person sign the Will in the testator’s presence and under his directions; or
- Each witness must have received from the testator a personal acknowledgement of his signature (or mark) or of the signature of such other person; or
- Each witness must sign the Will in the presence of the testator although they need not sign in the presence of each other.
Usually, Wills are signed by the testator himself. However, a testator may, instead of signing the Will, put his mark i.e., thumb impression thereon, either because he is illiterate, or because he is incapable of signing due to certain illness or even though sheer habit.
A mere signing on a Will by another person does not always amount to attestation. Attesting means signing a document for the purpose of testifying to the signature of the person executing the document. The attesting witness is not required to know the contents of the Will.
What is a privileged will?
For Privileged Wills there is an exception pertaining to strict attestation for the soldiers or airmen employed in an expedition or engaged in actual warfare. These people are entitled to make a written or oral Will (verbal dictation to a trusted individual) and if such person wants to make the Will in a written form, then he/she can make it without the need of signature or attestation, only if the Will is made in accordance with Section 66 of the Indian Succession Act,1925 which provides six rules regarding execution of the Privileged Wills:
- The testator (i.e., the person making the Will) may write such a Will wholly in his own handwriting. In such a case, it is not necessary to be signed by him or attested by witnesses.
- The Will may be written, wholly or in part, by another person and signed by the testator. In such cases, attestation by witnesses is not necessary.
- Even if the Will is written, wholly or in part, by another person, but is not signed by the testator, it is valid, provided it was written under the testator’s directions or if he recognized it as his Will.
- If the soldier, airman or mariner had given written instructions to prepare his Will but died before it could be so prepared, such written instructions are to be considered as a valid Will made by him.
- Even verbal instructions for preparing a Will would amount to a valid Will made by such a person, provided that:
- The verbal instructions were given in the presence of two witnesses;
- Such instructions have been converted into writing in his lifetime; and
- He has died before the formal will could be prepared and executed.
- Lastly, such a Will can be made by the soldier, airman or mariner by word of mouth i.e., an oral declaration of his intentions before two witnesses present at the same time. However, such an oral will automatically become null and void at the expiry of one month after such a person, being still alive, has ceased to be entitled to make a privileged Will.
The Act came into force during the major pandemic in the year 1918-19 called Spanish Flu, but even that did not help in easing the rules for execution of Wills during such pandemic.
This shortcoming was stated in 1985’s Law Commission of India Report No.110, which suggested that the strict rules for the execution of Wills should be eased for the people affected by a pandemic or natural calamity. It also stated that the exceptions made under Privileged Rules shall be applied to such affected persons (i.e., unprivileged Wills testators). But due to a lack of concern for such people and the efficiency of the Governments, the suggestions have not been implemented yet.
However, since technology has pervaded our daily lives and the establishment of the Information and Technology Act, 2000, has led to the formation of agreements via electronic means, but it does not include Wills. Recognizing this lacuna, in the year 2019, the Steering Committee on Fintech Related Issues, Department of Economic Affairs, in its report, suggested that the Department of Legal Affairs should consider amending various laws in order to permit the digital alternatives for legal process pertaining to various financial services and Wills.
Even this recommendation hasn’t been implemented yet.
Hence, the use of digital signature is still not permitted and it is clear that even if the testator is in quarantine or admitted to the hospital for any reason whatsoever, the strict procedure i.e., signature or affixation of thumbprint and attestation must be followed regardless of circumstances.
Now it’s time to fix the problem
Many countries have implemented special provisions or exemptions pertaining to Wills made by individuals who are on brink of death or are suffering from certain infections or epidemics or are not able to travel due to transport restrictions or are stuck due to military limitations. If the testator survives after the end of the emergency, then a formal procedure is required by some laws.
The need for digitization of Wills has made many jurisdictions modernize their laws in order to establish a smooth functioning of the Wills. For instance, in the USA, a US court held that a Will drafted on a ‘tablet’ and signed by the testator under the supervision of two witnesses, then the Will shall be held valid. Given the judgment, the Uniform Law Commission of USA drafted a Unified Electronics Wills Act as Model Act, to be adopted by the US States. During the Covid pandemic, many US states issued emergency orders regarding remote witnessing as well as notarization of Will in order to execute wills.
In the United Kingdom, the execution of Wills can be done via video conferencing with the witnesses. This provision came into force on January 31, 2020 due to the rise in the number of active Covid cases in the UK. The same provision was enforced by the Law Society of Scotland for a temporary period. The Ontario Government allowed witnesses of Wills on two conditions: (i) That the participants should use an electronic medium in order to communicate with each other; and (ii) Among all the witnesses at least one of them should be a lawyer.
Solution for India
In India, the outbreak of COVID-19 and the requirement of quarantine for affected people and the need for social distancing, has created a need to amend the Act and make alternative provisions pertaining to the physical attendance of the witnesses.
Under ‘privileged Wills’, the flexible provisions enable a person to execute a Will without any problem under a procedure already provided to airmen, soldiers, etc. This provision can be drafted with the following statement:
A calamity (defined below) affected person can make a privileged Will under Section 66 of the Indian Succession Act. The expression “Calamity” shall include, earthquake, flood, accident or natural or non-natural calamity like epidemics, riots, wars, lockdowns or any other situation in which the person is under the threat of death.
Apparently, such an amendment would modernize the Indian Succession Act, because of the provision pertaining to Will execution by allowing the digital signature by the testator to be affixed on the Will in the presence of the witness (es), who is not necessarily required to be present physically but is allowed to remotely affix the digital signature.
There is no convincing reason for the need of two witnesses for witnessing the execution of the Will by the testator, one is enough or even not a single witness is required to be present if the provision allows as such. This is supported by the Evidence Act which allows a single witness to prove the Will execution and also provides certain
measures for proving Will execution if the witnesses are not available (i.e., if both of them die).
A witness is required for two main reasons: (i) to avoid forgery; (ii) to verify the identity of the testator. Both of these reasons are met by allowing the testator to sign the Will via digital signature because the Information and Technology Act acknowledge the digital signatures tantamount to physical signature if the below-given requirements for the execution are followed:
- The person signing the Will shall create a unique E-signature that links the identification of the signatory digitally.
- The signatory shall have the authority over the data used during the time of signing for the purpose of E-signature generation.
- The document shall be encrypted with a tamper-evident seal such that any kind of alteration to the e-signature or the signed document shall be easily detectable.
- The digital procedure of the execution of Will shall be performed with proper due diligence.
- The digital signature certificates shall be issued by a Certifying Authority appointed under the Information and Technology Act, 2000.
If the aforementioned requirements are met then there would be legal anticipation of the digitally signed Will under the Information and Technology Act.
In conclusion, it is pertinent to say that the option of E-signature for the purpose of execution of Wills holds strong commitment of smooth functioning of Wills during any kind of calamity. Also, the digital signature or E-signature of witness (es) shall be considered for the purpose of the attestation. Such a procedure shall be done under video surveillance for the purpose of due diligence and to avoid mala fide acts and misuse of the provision. Such changes will make the execution of Wills convenient during a calamity and also the Indian Succession Act which is a 96-year-old act will get the modern touch.
- Indian Succession Act,1925.
- Information and Technology Act, 2000.
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