Digital Wills in times of COVID-19 crisis: Legal or not?

As the Indian judiciary went dysfunctional due to the widespread lockdowns continuously taking place, justice remains an unattainable goal. The Covid-19 pandemic has led to increased deaths, resulting in interest in succession planning, such as through wills has also increased. India has adapted its digitalization process, from aiming to speed up technological applications across quotes to making government officials learn computerization. This is why, at this period, those seeking legal advice on succession planning face two challenges: inefficient courthouses and closed law offices. This article will address the issues that came up in developing electronic wills, also referred to as digital wills or e-wills. India provides several platforms through which people who are looking to make succession plans can apply for wills.

There is no doubt that there are a lot of legal issues while creating a will when you are in isolation, be it through social separation or quarantine procedures; however, certain precautions can be used in order to avoid pitfalls while will drafting in India.

Concept of Will

We all are aware that a will is a legal declaration of the intention of someone who wishes to transfer his property or money to the next generation or to whomever he desires. Will will only become effective upon the death of the person who wrote it. The person who drafts the will is referred to as the testator, and to whom the will is transferred is known as the testatrix. Will made before the testator’s death is a unilateral document that can be modified or annulled anytime the testator wants to change it. A legal declaration signed by a Hindu, Sikh, or Buddhist is subject to the Indian Succession Act 1925, whereas when a Muslim makes a will, it will not be bound under the Indian Succession Act 1925.

Electronic wills are written, signed, and authenticated wills through an electronic device. The testator utilizes an electronic medium to attach their signature or other crucial aspects of the will. The concept of will is a new development where a will is scrutinized in a safe and proper way. All the information on the assets, financial investments, properties, or money can be accessed digitally following the death of the executor.

Important elements of a will

In accordance with the Indian Succession Act 1925, an individual who has attained the age of majority and is of sound mind is able to make a will, provided that there are two formalities he must meet:

  • The will should be written and must be signed by the testator.
  • The will should also be witnessed by two or more witnesses and signed by them in the presence of the testator. The witnesses should also verify that the testator has signed the will before them and that they acknowledge the signature.

In the outbreak of the Covid-19 disease, the requirement to sign and attest has been somewhat relaxed. In normal conditions, these concessions are available to military personnel and members of the Air Force working for the direction of the government. In addition, the registration of a will is not mandatory.

Legislations pertaining to will

As mentioned earlier, the Indian Succession Act of 1925 has its own rules for the execution of wills and is extremely specific regarding the same. The Act requires a formal written document to be signed by both the testator as well as the witnesses. There is also an Act that allows electronic contracts but does not permit certain wills. It is known as the Indian Information Technology Act 2000. Wills are not allowed to be created using electronic methods such as email or documents that have digital signatures.

Furthermore, it is not permitted under the Indian Succession Act 1925, which requires that the signature take place before witnesses and testators and does not require the presence of any of them via video conference. In accordance with Section 65B of the Evidence Act 1972 for additional evidence, video recordings of the will could be used to verify that the testator is in good health and that any unjust influence, fraud, or doubt never drew it up. These actions by the Indian judiciary arouse the wounds of those requiring assistance in swiftly drafting the will.

Validity of Digital Wills

In India, there isn’t any concept of a “digital will” or testamentary disposition using ‘electronic means.’ The Information Technology Act provides electronic signatures, also known as digital signatures, with a few exceptions from the general rule. The documents covered under Section 3 of the Indian Trust Act include wills, codicils, testamentary trusts, negotiable instruments other than cheques, power of attorney, or any other contract related to the sale of the property. Section 1 (4) of the Indian Information Technology Act 2000 states that nothing in this Act is applicable to any of the definitions of will under clause (h) of Section 2 of the Indian Succession Act 1925. The steering committee on fintech issues has also recommended digital legal alternatives that could reduce the cost and time involved.

Indian Succession Act 1925 and the Indian Evidence Act 1872

Section 63 of the Indian succession act 1925 requires wills to be signed by two witnesses in the presence of the testator. In addition, once probation of a will in India has been granted, the witnesses or any one of them must be required to confirm this fact in accordance with Section 68 of the Indian Evidence Act 1872, which stipulates that if the law requires any document to be attested, then in order to prove the execution of the document, it must take place in the presence of attesting witnesses. So, by combining Section 63 of the Indian Succession Act 1925 and Section 68 of the Indian Evidence Act 1872, it can be concluded that atleast one attesting witness must be present for the will to be valid.

Law Commission recommendations

The existence of issues encountered by the people during the pandemic, the Law Commission of India, in its 110th report, suggested a certain ease of rules regarding an executive will by the individuals whose deaths occur because of some uncertain calamities. In this report, the term “calamity” includes epidemic or pestilence.

Problems and solutions

The problems that came up in the pandemic when making the decision were:

  • Inquiring about an attorney who can assist you in the process of preparing the will.
  • Locating individuals to witness the signing of the will.
  • The printing of the will for signing.

The initial issue can be easily solved because many lawyers work remotely and offer the services of helping parties draft a will online.

The second issue of printing bills can be overcome. There is no written law that requires wills to be written and printed. The testator may write his will on any piece of paper, and the will can be recognized by law if it meets all prerequisites to execute the will.

The third issue is finding witnesses. This is the most challenging task. Testators who live with other family members may request any family member to serve as a witness, but those who live alone need help to meet this requirement. If there are no witnesses present, then the testator can create their own will when they have access to any witnesses. Witnesses may include any member of the family who is not eligible for bequests under the will.