Moneycontrol
Last Updated : Feb 12, 2019 09:45 AM IST | Source: Moneycontrol.com

Will in the digital age: Legal requirements and safeguards to be ensured for enforcement

It is necessary under the Indian laws that the will must be executed by the testator in the presence of two witnesses and the said two witnesses must have signed the will as witnesses in the presence of a testator

Moneycontrol Contributor @moneycontrolcom

Anju Gandhi

The requirement to make a valid will keeping in mind the new age digital assets is highlighted again in the recent unfortunate demise of the CEO of a Canadian company that owes its customers $190 million in cryptocurrency.

The new age will should take care of the inheritance of digital assets to the beneficiaries and help should also be forthcoming from the likes of Google/Facebook /WhatsApp and similar platforms for providing access to the information of an account holder to his/her legal heirs.

In this column, we closely examine the various legal issues relating to the difficulties that a beneficiary may face, while inheriting any property under a will; and the precautions which one must exercise while preparing a will.

Will and codicil

A testamentary disposition of property means a disposition of property which would be bought into effect after death. A testamentary disposition is generally effected by a will or by a codicil. We have discussed the salient features of a will in the first column published in January 2019.

Under the orthodox Hindu system, it was construed that the property, if not previously distributed during the lifetime of the deceased, automatically passed to his heirs, after he dies. So far as Hindus are concerned, it was in Bengal that the testamentary power of Hindus was first recognised and settled.

The first important prejudicial announcement was made in 1772. This is popularly known as Nuddea’s case. The will of the Raja of Nuddea, the testator, bequeathing the entire zamindari in favour of his eldest son while excluding his all other sons, was held to be perfectly valid.

The personal laws applicable to an individual play an important role and a will should be written keeping this in mind. As an example, the Mohammedan laws as applicable to a specific sect allow only one-third of the estate to be given under a will and the remaining estate is distributed in terms of the personal laws. Similarly, a will by a Christian may be required to be made again upon the change in marital status.

Legal Requirements for a valid will

The requirement of a valid will is that the testator must have known and approved the contents.

A person of sound mind, not being a minor, is capable of executing a will. It is necessary under the Indian laws that the will must be executed by the testator in the presence of two witnesses and the said two witnesses must have signed the will as witnesses in the presence of a testator. If this requirement is not complied with, the will may be rendered invalid or void.

Under the Indian laws, there is a provision for privileged wills as well, which may be in writing or may be made by word of mouth. These are restricted to wills made by any soldier under special circumstances.

Requisite of a valid will

-IT IS A VOLUNTARY ACT

The execution of a will is a voluntary gratuitous act on the part of the testator whereby the person expresses the intention with regard to inheritance of his asset upon his demise. The wills obtained by fraud, coercion, undue influence or importunity are not valid.

-FRAUD & COERCION

The Indian laws define fraud as any act committed by a person with the intent to deceive. It includes active concealment of a fact. Coercion means committing or threatening to commit any act that is barred under the Indian Penal Code. Undue influence is where a person is in a position to dominate the will of another and uses this position to obtain unfair advantage.

Importunity which takes away the free exercise of the testator’s own mind is another ground under which a will can be challenged. Whether or not the persistence/pestering of a person did lead to the writing of a will would depend upon the facts of each case.

-MOST COMMON OBJECTIONS
The most common objections seen while disputing the will before a court of law are forgery, unsound mind and undue influence. In order to circumvent the issues stated above, we strongly advise the following safeguards while executing a will:
• Obtain a certificate of the doctor on the date of the execution of the will that should clearly state that the testator has been examined by the doctor and he/she is of a sound mind and capable of independently taking decisions;
• Video record the execution of the will by the testator and two witnesses in the presence of each other. During the recording pertinent questions may be asked from the testator and the witnesses to corroborate that they are aware of their actions;
• The doctor issuing the certificate of good health may also attend the execution of the will and be video graphed;

• Registration of the will with the office of Sub Registrar of Assurances.

The author is Partner at the law firm SNG & Partners.
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First Published on Feb 12, 2019 09:44 am
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