Is Electronic Will Valid in India ?

A will is a formal declaration of an individual's desire to pass along his wealth to future generations. After the will's creator passes away, it becomes effective. A will is a unilateral document that can be changed or revoked at any moment the maker is legally able to pass his property under the applicable succession law governing that person. The Indian Succession Act, 1925's rules apply to any such legal declaration made by a Hindu, Buddhist, Sikh, or Jain. While Muslims are exempt from the Indian Succession Act, 1925 and are free to transfer their fortune in accordance with Muslim law.

Wills that have been created, signed, and/or attested using computerised means are known as electronic wills. Given the rising tendency of personal data storage on electronic devices and in the cloud, it is not surprising that testators use electronic media for wills. An electronic will, also known as an e-will or digital will, is a relatively new idea. It involves creating a will properly and securely online. It offers digital information about your possessions, investments, and properties as well as who you want to leave your property, money, and other possessions to after you pass away.

E-Will types and which ones are best for India

1) Created and kept digitally

The first kind is a digital or electronic will that is created and kept on a person's computer or other device. The removal of the protective function is the main worry with this type of will, along with the difficulty for a judge to identify such situations when granting probate. This issue's "technological solution" involved the analysis of "metadata." It typically gives details about when something was produced, who had access to it, whether it was altered, and by whom. But it has been discovered that this is difficult. It will be necessary to rely on "technical and expert evidence." Which is expensive and time-consuming

2) Third-party platforms and services

On social media sites or other third-party services like Dropbox, it is possible for someone to publish something with the title "This is my will." This is the other kind of electronic will. It makes sense to keep the same reservations about introducing evidence that was channeling present with the first category. Furthermore, relying heavily on such platforms is necessary when a third-party service is involved because it is necessary to collect relevant information from these services. The entire process can take much longer, and this mode would also fall short in addressing the various functions, such as the channelling, protecting, and standardizing channeling functions provided by the rules of will-making.

3) Qualified Custodian

The third kind of electronic will is produced by a third-party medium that specialises in "creating, executing, and storing" the testator's will. They are able to assume the position of "qualified custodian." These companies might prove to be costly, but they might be useful if the regulatory requirements are taken into account. This tool also better addresses the channelling and protective aspects of the will-making process. Even though the reliance, in this case, shifts from an online media platform to a company, it can still be justified because it is more likely that a company operating in such a sector will attempt to comply with the rules and provide the court with the information it needs about its clients.

Due to COVID-19, individuals looking for legal counsel on succession planning confronted the dual issue of closed law offices and inoperable courthouses. While drafting the will, the following difficulties arose due to the pandemic:

1. Gaining access to legal counsel to help write the will.
2. Locating people to observe the will's signing.
3. Printing a signed copy of the will.

The testator cannot access a lawyer and must save time by preparing their own will, but the first issue can be resolved because many attorneys work remotely and offer their services of assisting the parties prepare a will online. A lawyer's involvement is not required when drafting a will, but it is advised when doing so for more complicated wills.

The search for a witness presents the second difficulty. If the testator lives with other family members, they can all be witnesses, but if the decedent lives alone, it will be more difficult to meet this requirement. Any family member who won't receive a bequest under the will is eligible to serve as a witness. As an alternative, you could ask the neighbors to serve as witnesses to the will as well.

The third difficulty can be surmounted as the requirement that wills be typed and copied is not mandated by law. The testator creates the will on any paper, and if it satisfies all of the requirements established for the execution of the will, it may be acknowledged by law.

However, people still faced difficulties in creating physical wills due to the pandemic. As a result, India has recently seen the idea of "electronic wills," also known as e-wills or digital wills, develop. However, there had been some debate regarding the validity of an electronic will in India, according to the Indian Succession Act, 1925, the important components of a will are as follows- A person who has reached the age of majority and is of sound mind may create a will under the Indian Succession Act, 1925, provided he satisfies two crucial formalities:

A documented will that has been signed by the testator is required.

A minimum of two witnesses must sign the will in the presence of the testator and swear to it. The witnesses must also make sure that the testator accepts and signs the will in their presence.

The criteria for signing and attesting are somewhat relaxed during the present Covid-19 pandemic outbreak. In normal circumstances, only in the instances of wills signed by soldiers engaged in combat or seafarers at sea may these requirements be relaxed. These regulations undoubtedly seem outdated, but they offer a certain amount of security to both the Testator and the beneficiaries.

The Indian Succession Act, 1925, which governs Hindus, Sikhs, Jains, and Buddhists, stipulates that witnesses must be present in person to observe the testator's signature on the Will. As a result, according to the legislation, video conferencing attestation is insufficient. To demonstrate that the testator was of sound mind, was not coerced and did not act out of emotion, video recordings of wills may be used as additional proof, subject to compliance with Section 65B of the Evidence Act, 1872.

Therefore, there is currently no such thing as a "digital will" or a testamentary disposition made using "electronic means" in India. However, the Information Technology Act offers a number of exceptions to the general norm for electronic signatures or digital signatures. Wills, codicils, testamentary trusts, negotiable instruments other than checks, powers of attorney, and any contract involving the sale of real estate are among the papers covered by Section 3 of the Indian Trust Act. Nothing in this Act will apply to any of the meanings of will under clause (h) of Section 2 of the Indian Succession Act 1925, according to Section 1(4) of the Indian Information Technology Act 2000. Digital legal alternatives were also suggested by the steering committee on fintech issues in order to reduce time and expense.

Let us look at a detailed explanation of why electronic wills are not yet valid in India-

A Will must be signed by two or more witnesses in the testator's presence in accordance with Section 63 of the Indian Succession Act, 1925. The attesting witnesses, or one of them, must then testify to this fact at the time of getting probate. This is due to Section 68 of the Indian Evidence Act, 1872, which states that if a document is legally required to be attested, it may not be used as evidence until at least one attesting witness has been called to testify about its execution, provided that the attesting witness is still alive, subject to the court's process, and capable of providing evidence.

This means that in order to demonstrate the proper execution of a Will, at least one of the attesting witnesses must be deposed, according to a joint interpretation of sections 63 of the Indian Succession Act, 1925, and 68 of the Indian Evidence Act, 1872. According to Section 69 of the Indian Evidence Act, 18728, the Will must be proved by demonstrating the testator's signature as well as the signatures of at least one attesting witness in the event that no such attesting witness is present or can be located.

As a result, The Indian Succession Act, 1925 mandates that the testator (the person who creates the will) executes it in front of two witnesses who are able to enter into a legally binding agreement. These attesting witnesses are then required to attest (i.e. sign) the will as attesting witnesses in the presence of both the testator and each other after they have witnessed the testator executing the will. This prerequisite must be fulfilled on actual paper, not online.

The Law Commission of India suggested relaxing the rules for will execution by those who are affected by disasters and reasonably fear immediate death in its 110th Report. According to the Report, such a catastrophe would include "epidemic" or "pestilence" occurrences. However, this suggestion has not been implemented, and as of right now, the legislation does not call for a relaxation of legal requirements during an outbreak like COVID-19.