In these uncertain times of a global pandemic, there is increased interest in succession planning, including through Wills, and understandably so. Yet, there are considerable practical and legal challenges involved in making a Will during social distancing, isolation or quarantine. In this blog post, we discuss these challenges in the Indian context and suggest potential solutions. While it may not be possible to find foolproof solutions, and unfortunately technology is not yet an ally, there are some measures that may help to overcome prevalent complications in creation of Wills.
Law is not pandemic proof
The law relating to Wills in India is set out in the Indian Succession Act, which was enacted in 1925. Although introduced only a few years after one of the last major pandemics to affect India – the Spanish flu pandemic of 1918-1919 in which millions of Indians died, the Indian Succession Act, 1925 (ISA) does not ease the rules for making Wills in times of such crises.
This lacuna was recognised by the Law Commission of India in its 110th Report on the ISA (1985). Upon analysing the laws of other countries (mainly civil law countries, unlike India, which is a common law country), the Law Commission recommended relaxing strict rules of formality for execution of a Will by a person affected by a calamity when he has reasonable apprehension of immediate death. Such a calamity would cover instances of an ‘epidemic’ or ‘pestilence’, as noted in the Report.
Unfortunately, this recommendation was not given effect to, and the law as it stands today, does not provide for easing of legal formalities amid an outbreak such as COVID-19.
Making a Will
As per the ISA, any person of sound mind and being of the age of majority can execute a Will. The Act mandates two key formalities for execution of a Will:
- Signing: The Will must be in a written document which is signed by the person making the Will (known as testator).
- Attestation: The Will must be attested by two or more witnesses by signing the Will in the presence of the testator. Such witnesses must have seen the testator sign the Will or must have received from the testator a personal acknowledgment of his signature.
The requirements of signing and attestation as above are only relaxed in the case of a Will by a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner at sea.
Contrary to popular belief, no stamp duty is payable on a Will. A Will also does not need to be notarised or registered.
Challenges and solutions
While the said formalities for execution of a Will are not rigorous and can easily be complied with during ‘normal’ times, during extraordinary situations such as these, testators are likely to face certain challenges in completing them:
- Accessing a lawyer to assist in preparing a Will;
- Printing a typed draft of a Will to sign it, in the absence of ready access to a printer;
- Finding two witnesses to be present to witness the signing of the Will by the testator.
Some potential solutions to overcome these challenges are:
- Issue 1: Lack of access to a lawyer – While many lawyers are ‘working from home’ and would be available to prepare a Will, in case the testator does not have access to a lawyer, or in the interest of time, the testator can prepare his own Will.
It is not necessary that a Will must be drafted by a lawyer. While a lawyer should be engaged to prepare a sophisticated Will, a simple Will can be prepared by anyone. A person who does not have a Will could execute a simple interim Will right now and expand that to a more thorough Will after normality has resumed.
Notably, there is no particular format to be followed for making a Will. A short Will identifying (i) the recipient of the property of the testator after their demise; and (ii) one or more executors to give effect to the terms of the Will, will suffice.
The Will need not be in English.
- Issue 2: Printing a Will – The law does not require a typed and printed Will. A testator may write his Will on any regular paper by hand. Such a handwritten Will is recognised by law (named a holograph Will). Care should, of course, be taken to ensure that the handwriting is legible and spelling errors are avoided.
- Issue 3: Finding witnesses – This might be the most difficult formality to satisfy. For testators residing with family members, it is tempting to make such family members witnesses as they are easiest to access. However, ideally, the testator should avoid making a person who is receiving benefit under the Will (called legatee) a witness. For Hindus, Jains, Sikhs and Buddhists, there is no legal prohibition in doing so, but it is good practice not to. If the testator makes a Will with legatees as witnesses due to unavailability of others, then he could consider replacing this Will with another once a different set of witnesses becomes accessible. For Christians and Parsis, however, there is legal disqualification on witnesses being legatees.
A family member who has not received any bequest under a Will may be a witness. For instance, if a testator has given his entire estate to his wife under the Will, then his children may be witnesses as they are not legatees.
Alternatively, two trusted neighbours may be invited to attest the Will. This can be achieved by maintaining recommended hygiene guidance and social distancing norms, with the testator and witnesses being in line of sight but keeping safe distance. If the testator has been admitted to a medical facility, then the healthcare practitioners attending to him may be requested to attest the Will, provided that the testator is of sound mind to prepare a Will.
Digital Wills? Not yet
Technology is helping support and reshape our daily lives in unparalleled ways as the world adjusts to working remotely. By adopting innovative approaches such as digitalisation of Will making, barriers to Will creation may be overcome in two ways: (i) allowing Wills to be made by email; or (ii) signing and witnessing of Wills by way of video conference. However, there is no legal support in India for either of the two steps.
The Information Technology Act, 2000, permits formation of contracts through electronic means, but excludes Wills. Hence, preparing Wills through the medium of emails or documents with digital signatures affixed is not permitted. Further, the ISA requires witnesses to be present personally to see the signing of the Will by the testator. Therefore, attestation by video conferencing is inadequate.
In other jurisdictions, dialogue has commenced on modernising the law to facilitate digitalisation of Will creation the immediate circumstances. The Law Society in the UK has approached the government and the Solicitors Regulation Authority (SRA) to address the legislative and regulatory barriers to executing wills in the current context, including requirements for witnessing wills, and the use of video conferencing facilities.
Interestingly, in India last year, the Report of the Steering Committee on Fintech Related Issues (constituted by the Department of Economic Affairs, Ministry of Finance) recommended that the Department of Legal Affairs review and consider amendments to laws to permit digital alternatives in case of Wills. However, no amendments have been enacted as yet.
Although technological tools are not yet available for assisting with the execution of Wills in situations of emergency, we are hopeful that the current difficulties will accelerate the law’s march towards that direction. Until such time as the law is expressly updated to permit digital Wills, testators should continue to prepare Wills traditionally in paper format, in the presence of witnesses.