Digital Wills in India: A need arising from COVID-19 crisis
The distressing and uncertain times that COVID-19 pandemic has brought around the globe has stirred a sort of panic and fear within people with respect to their health. Resultantly and rightly so, people refrain from leaving their home premise and are looking out for alternatives to the tasks which they earlier completed outside the bounds of their homes. Such alternatives usually lie within technology – be it work from home, attending online classes or even shopping online.
Given the increased need for technological alternatives all around, the same alternatives are also sought in the legal field. Speaking of India, proper legal recognition to the working of Information and Technology in legal realm was provided when IT Act came in force in 2000. Hence, it can be said that IT Laws in India are at a relatively nascent stage when compared to the other developed nations. Therefore, it also follows that, with the prevailing laws in India, there is not as great a level of integration with the IT means & modes as would have enabled the common person a seamless and effortless access to justice or legal peculiarities and formalities.
POSITION OF DIGITAL WILLS IN INDIA
Digital wills is one such concept, the need for which has especially surfaced in these extraordinary times where people are turning towards technology for the tasks, which they would have never thought of doing in this manner, if it weren’t for the COVID pandemic. The term ‘Will’ is defined under Section 2(h) of Indian Succession Act, 1925 that defines it as, “the legal declaration of the intention of testator with respect to his property which he desires to be carried into effect after his death.”
In other words, will is a legal written document, which specifies the manner in which the property of the testator is to be managed and distributed after his death. As for the execution of the will, vide Section 63 of Indian Succession Act, 1925:
(a) The testator is required to physically sign or affix his mark to the will, or it is to be signed by some other person in testator’s presence and under his direction.
(b) The will is to be attested by two or more witnesses which have seen the testator sign the will.[i]
Only a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea is an exception to the above stated requirements of signing and attestation of a will. During a normalcy period, the said law demanding testator’s and witnesses’ physical presence for its execution actually works to protect the testator’s rights and interests against fraud, undue influence, coercion, etc. However, under the current COVID-19 induced circumstances, the mere execution of will in its traditional manner can very well turn into a health hazard for the lot of people present.
It is now that digital wills or electronic wills would have been a better fit in catering to the requirements of the society undergoing an unprecedented time. Digital Wills /Electronic Wills can be defined as the wills that have been written, signed, and/or attested using an electronic medium. The signing and attestation of the wills could have been easily done away electronically without the physical presence of testator and witness using Digital Signatures which has been provided within the Information Technology Act, 2000 but the act, under Section 1(4) read with first schedule specifically prohibits “will as defined under Section 2 clause (h) of the Indian Succession Act, 1925 including any other testamentary disposition by whatever name called” to be included within its purview.
LEGAL RECOMMENDATIONS WITH RESPECT TO INCORPORATION OF DIGITAL WILLS IN INDIAN LEGAL SYSTEM
In the year 1985, the 110th Law Commission Report on Indian Succession Act, 1925 with reference to the formalities of execution of a will recommended that there should be relaxation with respect to the strictness of rules of execution of a will towards an individual who is affected by calamity with a reasonable apprehension for his death. ‘Calamity’ as a definition in the report covered within its ambit the term ‘epidemic’, which is of great significance in today’s COVID-19 pandemic period but unfortunately, the recommendation was not taken up by the legislature.
Even very recently, last year in 2019, Steering Committee report on Fintech Related Issues which is constituted by the Department of Economic Affairs, Ministry of Finance suggested the Department of Legal Affairs of enabling digital alternatives in case of wills – the report read as, “the Committee recommends review by Department of Legal Affairs of all such legal processes that have a bearing on financial services and consider amendments permitting digital alternatives in cases such as power-of-attorney, trust deeds, wills, negotiable instrument, other than a cheque, any other testamentary disposition, any contract for the sale or conveyance of immovable property or any interest in such property, etc., (where IT Act is not applicable), compatible with electronic service delivery by financial service providers.” [ii]
INDIAN EVIDENCE ACT AND INDIAN SUCCESSION ACT TO BE READ IN CONSONANCE WITH EACH OTHER
Though nothing specifically in Indian law relates to Digital Wills, the courts have taken certain initiatives directed towards giving effect to a few digital aspect of wills. In the case of Sayar Kumar v. State & Ors,[iii] the execution of the last will of testatrix was recorded on video back in 1985 when IT Act wasn’t applicable. While adjudging the petition filed under Section 222 of Indian Succession Act, Hon’ble Delhi High Court recognised the recorded video as additional evidence to the soundness of testatrix mind.
Therein, referring to the admissibility of video recording as evidence in the landmark case of State of Maharashtra v. Praful B. Desai,[iv] court held that especially after the amendment to Evidence Act by IT Act in 2000, if the video recording of the execution of will is in conformity with the requirements of Section 65B of Indian Evidence Act, then such a video/digital recording clip would be admissible in court as an evidence. But it has to be taken note of here that the actual execution of the will, signature and the attestation of witness cannot be done digitally since Indian Succession Act requires the witnesses to be present in person while the testator is signing or affixing his mark on the document.
To admit a document (such as will) that needs to be attested as evidence, Section 68 of Evidence Act requires the calling of at least one witness and in absence of the same, Section 69 requires proving the signature of testator and at least one attesting witness. Therefore, reading the aforementioned sections of Evidence Act and Section 63 of Indian Succession Act in conjunction, it is implicit that the will needs to be written on a physical document where testator physically signs or affixes his mark on the paper while the attesting witnesses are present at the time of testator signing or affixing his mark in person.
A reading of the above makes it amply clear that as of today, the digital or electronic will is still an emerging concept in India. However, around the world, laws relating to digital wills are gradually being integrated into the legal system - such as the introduction of Uniform Electronic Wills Act in 2019 wherein four states, namely Nevada, Arizona, Indiana and Florida have even enacted laws to give electronic wills a legal sanction. While New Zealand also allows wills to be signed and executed electronically, there are some additional requirements to be attended to as well. Electronic wills are also recognised in some provinces of Australia.
Given that even if digital wills are incorporated in upcoming laws, the apparent benefits are plenty to be seen with the majority of it being less time consuming, convenient; but at the same time, certain factors have to be looked into by the legislature such as the correctness of the particulars of the will, the protection of sensitive personal information, possibility of vulnerable individuals falling victim to undue influence/ coercion/ fraud in cases where there’s no way of knowing when a will is executed electronically, identity theft and similar profile of data breaches which any online act is susceptible to. The situation today due to COVID-19 is a testing time for everyone but has also shown us with the grey areas in our laws which ultimately goes to show that there is always room for improvement.
[i] Section 63, Indian Succession Act, 1925
[iv] AIR 2003 SC 2053.
ABOUT THE AUTHOR This blog has been authored by Abhinav Narta who is a 4th Year B.B.A., LL.B. (Hons.) student at Himachal Pradesh National Law University, Shimla & Shivam Mehta who is a 3rd Year B.A., LL.B. (Hons.) student at Guru Gobind Singh Indraprastha University, Delhi.
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