Electronic Wills (also known as e-Wills) are generally understood to be electronically written, signed, and/or attested Wills. To make the process of asset division easier and more technology-enabled, the acceptability of e-Wills is increasingly becoming popular in many countries, like the USA, New Zealand, Australia, and the Netherlands, especially after the arrival of the COVID-19 pandemic.
Almost all of these countries have relaxed strict regulations surrounding the execution of a Will and have introduced different provisions (depending on the country), such as allowing:
- Digital signatures to be affixed by the Testator and Witnesses
- Remote witnessing of e-Wills
- Testator and Witnesses to be present via virtual mode to record their signatures before a notary
e-Wills In India
To cut a long story short, the Indian legal system currently does not recognise e-Wills that are created, signed, attested, and stored electronically. Section 63 of the Indian Succession Act, 1925 specifies certain requirements for the execution of a Will: it must be signed by the Testator in the presence of two or more Witnesses. Section 68 of the Indian Evidence Act mandates the presence of at least one Witness, who has attested the Will for the purpose of proving the Will. E-signature is also currently not recognised, as Section 1(4) of the Information Technology Act, 2000 specifically excludes Wills, as defined under section 2(h) of the Indian Succession Act 1925, from its ambit. This means that, in India, a Will has to be physically signed and attested to make it valid and legally enforceable.
While these roadblocks continue to exist, discussions and debates have started to arise at the regulatory level around the simplification of the Will-creation process. The Report of the Steering Committee on Fintech Related Issues 2019 has made recommendations to the Department of Legal Affairs, Ministry of Law and Justice to devise digital alternatives for the execution of Wills.
Gradual Progress Towards Will Digitalisation
Given that the pandemic has resulted in increased usage and acceptance of digital technologies, such as the adoption of digital payments (a 28% increase, according to Reserve Bank of India report 2020-21) and the digital opening of Demat accounts using online trading platforms/applications, digital estate, and succession planning shouldn’t be far behind.
The Indian judiciary has expressed its intention to make the succession process through Will execution easier and smoother. For instance, in the case of Sayar Kumari vs State and Ors (2009), a video recording of the Will's execution was accepted as valid evidence by the Delhi High Court. The court also observed that with the availability of inexpensive gadgets and seamless connectivity, it should be possible for the entire process of Will execution to be recorded and stored. In another instance, the Delhi High Court was faced with a case where the deceased had executed an oral Will – which was duly video recorded in the presence of Witnesses. The contention of the appellant was that under the Indian Succession Act 1925, a Will can be made only in writing duly attested by two Witnesses and that a video-recorded document not being in writing, cannot be described as Will. The single judge took a view that an oral statement duly recorded on an electronic medium is a document. While the case has other complications and is sub-judice before another bench at the time of writing this, the single judge observed prima facie that the court cannot hold that a video-recorded Will is not a Will in the eyes of law. Such a progressive stance taken by the courts reinforces the belief in technological advances for the betterment of Will-makers and beneficiaries.
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