Digital Wills in Times of COVID-19
As the nation gears up for Lockdown 2.0 justice remains a distant dream as the Indian judiciary remains dysfunctional, at large. Further, digitization in India has evolved from the computerization of government offices to fragmented initiatives aimed at speeding up technological implementation across courts, albeit at a sluggish pace.
Fortunately or not, India has witnessed a recent development in the concept of “electronic wills” also known as e-will, or digital wills. As the term suggests, a will is a declaration of intent by a person competent to transfer his wealth to others, but in an electronic form. Simply put, electronic wills are those wills that have been written, signed, and/or attested by way of an electronic medium.
In India, several platforms like Willstar, and MakeMyWill.in, Lawfarm, EzeeWill, etc. offer will-drafting and advisory services at reasonable rates.
Prevailing legislation and its issues
The law governing the Execution of Wills has been in effect since 1925 and is very specific. The law requires that be a written document signed by the person making the will i.e. the testator in presence of witnesses and be attested by two or more witnesses by signing the Will in the presence of the testator.
These requirements may be relaxed only in cases of wills signed by soldiers in warfare, or mariners at sea. Clearly, these rules appear archaic but they provide a certain level of protection to the Testator and beneficiaries alike.
On a regular day, these conditions can be met with relative ease; unfortunately, the law is not pandemic proof and prevailing legislations fail to recognize unconventional electronic wills. In fact, the Indian Information Technology Act, 2000, which allows electronic contracts, has specifically excluded wills and other testamentary dispositions from the applicability of its provisions.
Specifically, the preparation of Wills through electronic modes like emails or documents with digital signatures is not permitted. Further, the Indian Succession Act, 1925, governing Hindus, Sikhs, Jains, and Buddhists, requires witnesses to be present personally to see the signing of the Will by the testator. Therefore, attestation through video conferencing is inadequate under the law.
However, video recording of wills may be used as additional evidence, subject to compliance with Section 65B of the Evidence Act, 1872, to show that the Testator was of sound mind, and did not act out of coercion, undue influence, or fraud. Thus, the Indian judiciary’s partial acceptance of technology in the process of evidence and adjudication has further aggravated the wounds of people seeking expeditious legal help.
Recommendation of the Law Commission
Realizing this, the Law Commission of India in its 110th Report recommended a relaxation of rules for execution of a Will by persons affected by calamities has a reasonable apprehension of immediate death. As per the report, such a calamity would encompass instances of ‘epidemic’ or ‘pestilence’. However, this recommendation has not been given effect, and currently, the law does not provide for the easing of legal formalities amid an outbreak such as COVID-19!
The Scottish Law Society, for instance, issued guidelines wherein witnessing can be done via video technology in the presence of a lawyer overseeing the will signing process. Furthermore, the Ontario government introduced a regulation under the Emergency Management and Civil Protection Act, which allows witnessing of wills and powers of attorney remotely during the COVID-19 emergency.
Adding another stratum of protection, the regulation mandates 2 conditions namely: 1) technology that allows parties to see, hear and speak in real-time must be used, and 2) at least one of the witnesses must be a lawyer or a paralegal.
Unsurprisingly, many people are anticipating their own death during the COVID-19 pandemic and in a jiffy to make a legally enforceable will. However, the prevailing legislation is unsuitable for making wills in a time of quarantine and social distancing, with the non-recognition of digital wills coupled with a requirement to be physically present at the time of execution of the will.
However, with the current Indian government promoting the use of technology, social media, and e-governance, to encourage the pace of growth in various industries, and other countries positively recognizing testaments made in electronic form, there is an expectation for recognition of such concepts in India.
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