Moneycontrol PRO
Upcoming Webinar:Watch a panel of experts discuss: Challenges of continuously evolving regulation for Cryptocurrency, on 7th July at 3pm. Register Now

Tech-enabling of estate planning – need of the hour

Today, where technology has practically transformed almost all businesses, estate planning and legal services can’t be far behind. We need to impress upon and push our policy makers to introduce the right laws and amendments to embrace these technologies, eventually making it convenient for all stakeholders.

June 21, 2022 / 08:07 AM IST

Technology and digital revolution have truly transformed our lives. Technology has been a key and positive disruptor in industries ranging from hospitality to banking, and health care to entertainment. In estate planning too, we believe there are areas where we need to embrace technology and digitalisation to whittle down certain serious obstacles and bring in much-needed efficiencies in the system.

Digital Wills

Akhilesh Shukla (name changed to protect identity), a resident of Malad in Mumbai, met us in the last week of February 2020 for assistance in drafting his Will. By the time we could collect all the data and finalise the draft of the Will, we were in the first COVID-19 lockdown. We requested him to sign his Will as soon as he could, but being a diabetic and staying alone, he didn’t want to take the risk of moving out to take a printout of his Will and call the witnesses over to his house. Sadly, we got a call from his financial advisor in mid-June 2020 that Shukla had succumbed to COVID-19 before executing his Will. Only if Digital Will would have been legal in India, Shukla would have executed his Will and not died intestate.

Digital Wills, popularly known E-Wills require two elements — a digital signature on the Will, and electronic witnessing of the Will.

a) Digital signature on Will: A digital signature is routinely used to validate the authenticity and integrity of a message. In India, digital signatures are valid for many contracts, but are disallowed for Wills, codicils, trusts and sale of immovable property.

Close

b) Electronic witnessing of Will: Wills, traditionally and legally, are required to be signed by the testator in the presence of a witness. In 2019, the US passed the E-Wills Act, which allows for an individual to make a will, sign it, and have that signature witnessed, electronically. Thus, witnesses will no longer have to be physically present when a testator affixes his/her signature to the Will.

The legislations in India presently do not recognise the concept of a 'digital will' or any other form of testamentary disposition by electronic means. We strongly believe that the time has come now to bring in the much-needed amendments in legislation to make digital Will a valid document.

Video recording of Wills

In October 2009, while deciding on a 1985 case seeking the grant of a Will, the Delhi High Court had ruled that video recording of a Will is legally admissible evidence. Having said that, the video recording of a Will is merely creation of an additional evidence to prove that while making the Will, the Testator was in sound mind, and acted without any coercion, influence, duress or fraud. As such, as per current law a Will cannot be made through video. Currently, we have technology that can authenticate the time and location of a recorded video, and forensic technologies to prove whether a video has been tampered with or not. We just need open-mindedness from our legislators to make the Wills made through video recording, a legal Will.

Remote or digital notarisation

Though notarisation of Wills is not mandatory in India, there are many other documents like affidavits, and power of attorney which require notarisation. Digital or video-enabled remote-location notarisation will surely reduce the time and money spent by individuals and make the whole process smoother and more efficient.

Online Will Probate

Currently, getting Probate of the Will is a lengthy and tedious processes. The length of the process is due to repetitive tasks like data entry and reconciliation, and they put a huge stress on the legatees. Due to this, many times legatees avoid filing for probate and try to take short-cut routes which are often illegal, exposing them to property ownership disputes in future. Centrally-stored data of the assets of the deceased can be retrieved from data repositories like banks, registrars, depositories, etc. to speed up and streamline the probate filing process.

To conclude, in the current era, where technology has practically transformed almost all businesses, estate planning and legal services can’t be far behind. We need to impress upon and push our policy makers to introduce the right laws and amendments to embrace these technologies and eventually making it convenient and hassle-free for the citizens of the country.

 
Shailendra Dubey is Partner-PlanMyEstate Advisors LLP
first published: Jun 21, 2022 08:07 am
Sections
ISO 27001 - BSI Assurance Mark