Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Email id: email@example.com
Mobile No.: +91 9810081079
Ram Manohar Lohia National Law University, Lucknow
A will is a legal declaration of the intention of a person who is desirous of transferring his wealth to the subsequent generations. It takes effect after the death of the maker of the will. A will is a unilateral document which can be revoked or altered by the person who made the will at any time he is competent to transfer his property under the relevant succession law governing that individual. Such legal declaration made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession Act, 1925. Whereas, Mohammedan can transfer their wealth in accordance with Muslim Law and are not governed by the Indian Succession Act, 1925.
Electronic wills1 are the wills that have been written, signed, and/or attested using an electronic medium. Testators' use of electronic media for wills is hardly surprising given a trend of increasing personal data storage on electronic devices and on the cloud.2 The concept of an electronic will is a recent development, also called e-will, a digital will, as the term reflects, is making a will online-in a proper and secured manner. It provides digital data of your assets, financial investments, properties and to whom one wants to give his or her property, money and other assets after his/her demise.
VALIDITY OF DIGITAL WILL UNDER INDIAN LAWS:
Digital signature under Indian Information Technology Act, 2000
The legislations in India presently do not recognize the concept of a 'digital will' or any other form of testamentary disposition by electronic means. The E-Sign under the Information and Technology Act provides for several exceptions from the general rule that documents required to be in writing may also be recorded electronically. The exceptions embrace the following documents governed by statutes: wills, codicils, testamentary trusts/ trusts which have been defined under Section 3 of the Indian Trusts Act , Negotiable Instruments other than a cheque, a Power of Attorney, a Trust, and any contract relating to sale or conveyance of immovable property or any interest in such property. According to Section 1(4) of the Indian Information Technology Act, 20003, nothing in the said Act shall apply to a will as defined in clause (h) of section 2 of the Indian Succession Act, 1925 (39 of 1925)4, including any other testamentary disposition by whatever name called.
The recent report of the Steering Committee on Fintech Issues5 has also discussed about re-engineering of legal processes for the digital world. The Committee suggests that insistence on wet signatures on physical loan agreements be replaced by paperless legal alternatives, as these can enable cutting costs and time in access to finance, repayment, recovery, etc., for businesses and financial service companies. The Committee has, therefore, recommended that the Department of Legal Affairs should review 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.
Digital Signatures on wills in other countries
There are two main pieces of United States legislation that talks about electronic signatures; Uniform Electronic Transactions Act (UETA) and United States Electronic Signatures in Global and National Commerce Act (ESIGN). There are a handful of exceptions regarding what types of documents these Acts cover. Those exceptions include wills, adoption/divorce/family law, uniform commercial code, and court documents. Otherwise, it is widely recognized that electronic signatures do hold up in court. Similarly, countries like Canada, Australia, Singapore and South Africa do not permit electronic signatures on wills and codicils. Whereas, countries like New Zealand permit the same but with additional requirements.
The Indian Evidence Act, 1872 and Indian Succession Act, 1925
Under Section 63 of the Indian Succession Act, 1925,6 a Will is required to be attested by two or more witnesses in the presence of the testator, each of whom have seen the testator sign or affix his mark to the Will or have received personal acknowledgement from the testator that he himself has signed the Will. Subsequently, at the time of obtaining probate, the attesting witnesses, or one of them is required to depose to this fact. This is because as per Section 68 of the Indian Evidence Act, 1872,7 if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
Therefore, on a conjoint reading of section 63 of the Indian Succession Act, 1925, and section 68 of the Indian Evidence Act, 1872, at least one of the attesting witnesses will need to depose for the purpose of proving due execution of a Will. In the event that no such attesting witness is alive or can be found, then as per Section 69 of the Indian Evidence Act, 1872,8 the Will has to be proved by proving the signature of the testator as well as that of at least one attesting witnesses.
Thus, as The Indian Succession Act, 1925 requires that the testator (the person making the Will) executes his Will in the presence of two witnesses competent to contract and such attesting witnesses must attest (i.e. sign) the Will as attesting witnesses, in the testator's presence and in the presence of each other, after they have seen the testator executing the Will. This requirement will have to be completed on physical paper and not online.
VIDEORECORDING OF WILLS:
Video-recorded wills are accepted by the Indian courts. Video recording of Will is merely creation of an additional evidence to prove that while making the Will, the Testator was in a sound and disposing mind, and acted without any coercion, influence, duress or fraud. As such, there cannot be a Will made through video. The mandates of the Indian Succession Act for making a Will have to be followed. In October 2009, while deciding a 1985 case seeking the grant of a will, the Delhi High Court9 had ruled that video recording of a will is a legally admissible evidence. It is possible to make a video recording of the entire process of execution of a Will – Directions were given that a protocol should be developed by the Government in this regard with a manual of instructions to the Registering authorities.
SAYAR KUMARI VS. STATE AND ORS. (09.10.2009 - DELHC):
There was a petition under Section 222 of the Indian Succession Act10 seeking grant of probate of a Will executed by the testatrix. In the last Will the testatrix stated that she had given plenty to the defendant out of her free will and he also took forcibly from me. Her last will (execution) was recorded in a video film. Attesting witnesses present when the testatrix executed the Will who being a Physician by profession was competent to certify sound health and mind at the time of execution of the Will.
S. Muralidhar, J.
Making of the video of the execution of the last Will in the present case has made the task of the Court easier in arriving at its conclusion as to its genuineness. Although the Information Technology Act, 2000 (IT Act) was not in operation when the video recording was made of the execution and attestation of the last Will, the evidence by way of video recording is admissible for proving the Will in question.
The Supreme Court has in State of Maharashtra v. Prafull B. Desai11recognized in principle, although in the context of a trial, that evidence by way of video recording is admissible. This has been followed also in Sube Singh v. State of Haryana 12 and Rajendra Singh Rana v. Swami Prasad Maurya13.
Under the provisions of the IT Act there should be no difficulty in Courts acting upon and accepting as evidence video or digital recordings of the execution of Wills subject to compliance with the requirement of Section 65B of the Evidence Act, 1872. This Court would like to impress upon the Sub-Registrars that with the availability of inexpensive gadgets like webcams, portable and desk top computers, and connectivity through internet, it should be possible to make a video recording of the entire process of execution of a Will at the time of registration (by focussing on the executor of the Will, and the attesting witnesses, and also the administering of certain standard questions by the registering authority to the Executor). It should be possible to have a certified copy of such video/digital recording clip (with the date and time embedded thereon) issued to the parties concerned. There should also be no difficulty in storing in hard disks (with back ups at different secure locations) the recordings of such digital video clips (with date and time embedded) for easy retrieval. This will eliminate to a large extent questions of genuineness or the capacity of the testator to make the Will. If not already done, a protocol should be developed in this regard (along with a manual of instructions to the Registering authorities) by the Government of the National Capital Territory of Delhi (GNCTD) in consultation with the National Informatics Centre.
PERSONAL REMARKS AND CONCLUSION:
Creating an online will is less time-consuming and can save multiple visits to the lawyer's office. It can be prepared as discreetly as possible without anyone knowing it. There are several service providers who offer platforms and applications for the purpose. Importantly, one need not make a will in one sitting. Much like the physical Will, the online Will can be altered as many times as desired by the drawer. But most importantly, a physical copy of the will should be present to make it valid.
However, since there is no human interface, utmost care has to be taken while providing details and choosing beneficiaries. Some caution can help one avoid future disputes. "One must make sure that asset details, their holding pattern and the desired beneficiary are named accurately, because a detail here and there might be missed out when there is no human interaction.
Also, data confidentiality and security is a concern. A legal advisor is unlikely to breach his fiduciary duty towards his client; a similar level of safety is wanting while dealing with online platforms.
Regarding the validity of electronic wills in future, I feel, a computer-generated signature is like a "symbol" intended by the testator to authenticate the printed-out will, so it should be valid. Therefore, the same should be made legal with a fresh legislation.
1 What Is an "Electronic Will"? Harvard Law Review 131 Harv. L. Rev. 1790
2 Heidi Seybert & Petronela Reinecke, Internet and Cloud Services — Statistics on the Use by Individuals, Eurostat (2014), http://ec.europa.eu/eurostat/statistics-explained/index.php/Internet_and_cloud_services_-_statistics_on_the_use_by_individuals https://perma.cc/3J2W-EH3M.
11 AIR 2003 SC 2053.
12 AIR 2006 SC 1117
13 AIR 2007 SC 1305.
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