The global pandemic crisis caused by the Covid-19 disease has created disruptions for almost all individuals across the world. It has caused disruptions in commercial working, supply chains, and introduced a sense of uncertainty in regards to business and personal affairs. As uncertainty has built for individuals and families alike, it becomes important to understand procedural requirements and the steps involved in succession-related matters such as the execution and registration of wills. As the pandemic has worsened, several families have faced issues with such matters, especially since covid may also bring about further compliances. This article seeks to provide a simple understanding of wills and the process of executing them.
What is ‘Execution of a Will’?
Individuals should carry out proper drafting and execution of a will to ensure that the devolution of their assets is laid down according to their specific wishes. The definition of a ‘will’ is laid down in the Indian Succession Act, 1925 (‘Succession Act’) as, “the legal declaration of the intention of the testator, with respect to his property, which he desires to be carried into effect after his death.”
In essence, a will is a document by which an individual should:
- direct the specific manner in which his assets are to be distributed amongst the specified beneficiaries, and
- Appoint executors that will be administering the will and the person’s estates after their passing.
The process by which an individual’s will is made legally binding or valid is known as ‘execution’ of the will.
In India, the provisions concerning the requirements and registration of a legitimate will are laid down in the Succession Act. However, personal laws (i.e., laws that are applicable as according to the religion of an individual) may also be applicable at the time of succession of property. Hindus, Buddhists, and Sikhs are covered under the Succession Act, while persons of Islamic faith may also be covered under the Muslim Personal laws. Hence, depending on the religion of the testator (the person for whom the will is made), both the Succession Act and the personal laws must be kept in mind while executing the will.
Need for Executing Wills:
At the time of death, if the person passes away without having made a will, then it is known as an ‘intestate death’. In such an instance, both movable and immovable property of the person will devolve on the successors or legal heirs of the person based on the appropriate succession laws. However, to ensure that the property passes to the heirs in the proportion as desired by the person, executing a will is the best option.
These are the following advantages to drafting a will:
- A will helps provide legal certainty as to the devolution of property of the testator, and to ensure that his wishes have been laid down as he desires and will be met, on his passing.
- A will helps to take inventory of assets, and to determine the proportion of inheritance for heirs or for individuals laid down in the will. If such measures are laid down in the will, it can often help prevent disputes over property after the death of the testator.
- A will can ensure appropriate inheritance to non-natural heirs, if any. If an individual dies intestate, then the relevant succession laws (Succession Act or personal laws) will take over and only the legal heirs (according to the law) will receive shares of inheritance in whatever proportion determined by law. A will can allow the testator to provide inheritance according to his wishes.
What are the Essential Elements of a Valid Will?
The following are essential elements required when drafting a will:
- The testator (person or whom the will is made) must be a major.
- The testator must be of sound mind and operating under free will.
Under the Succession Act, bequests under a will can be made for any class of persons except for unborn children. Under Muslim personal law, a will can be made in favour of any individual that is capable of holding properties including unborn children who will be born within a time period of 6 months.
Under the Succession Act, Hindus, Sikhs, Buddhists, and Christians can via a will, dispose any property that can be disposed by them (i.e., over which they have an adequate title). Muslim personal law has specific rules regarding legal heirship, and they can dispose only one third of their estate via a will.
The following factors are important to keep in mind when drafting a will:
- The will that is being made should meet all factors required under the Indian Succession Act, 1925. The will should also be attested by at least two witnesses.
- The document should be made without coercion or undue influence and the same must be stated in the will.
- The will should properly delineate the properties that will be transferred.
- If any heirs of the individual are being disinherited, then the same must be specified in the will.
- A person must be named as the ‘executor’ of the will, who will administer the document and the properties therein on the passing of the individual.
- There is no requirement of registering wills, however, registering their wills would provide easier recourses for non-resident Indians.
Digital Wills in India:
The advent of the Covid pandemic has caused several aspects of life to be moved onto digital platforms, and advanced technology has been specifically developed to execute documents in this regard. As the pandemic crisis has worsened, there has been a rising question of whether testamentary wills executed digitally would be legitimate under Indian law.
As of now, no concessions have been made under Indian law to allow the execution of wills through digital means. Wills are required to be signed and attested in the physical presence of the witnesses and provide such personal acknowledgment. Since the physical presence of witnesses is mandated, execution of a will with a virtual presence of a witness will not be valid.
Under the Information Technology Act, 2002 (‘IT Act’) for digital documents to be legitimate, certified digital signatures have to be affixed onto such documents by the appropriate individual. However, the IT Act has specifically excluded the ambit of wills from its ambit and has said that digital signature cannot be used for the execution of any testamentary document.
While digital wills are not yet permitted under Indian law, the Report of the Steering Committee on Fintech Related Issues has provided a recommendation that there should be a review of the relevant succession and information technology laws in order to permit such digital wills. While these amendments have not been proposed yet, the need for such digital documents has been recognised. There is hope that in the near future the government may take up providing such amendments, which will come as a relief to many individuals in India.
Wills in the Time of the Covid Pandemic:
The two major requirements that must be met when drafting a legitimate will, is that it must be laid down in a written document and must be attested (i.e., signed) by at least two witnesses and the witnesses should be physically present for the signing of the will by the testator and should be provided an acknowledgment regarding the signature.
The requirements of attestation and witnesses for executing a will, are only relaxed in the case of soldiers that are deployed or engaged in active warfare. Wills also are not required to be registered and stamp duty is also not payable on such documents. Even unregistered wills are legitimate as long as the requirements for documentation and witnesses are met.
Finding witnesses might be a difficulty during the times of the Covid pandemic. Under the Succession Act, Hindus, Buddhists, and Sikhs are allowed to have family members serve as witnesses, while this is prohibited for Christians and Parsis. However, family members that are not bequeathed under the will may serve as witnesses.
There is also no legal requirement that a will must be drawn up by a lawyer or advocate. Only the requirements of it being a written document and attestation by witnesses must be met for the execution of the document.
Here are some guidelines that will help in the drafting of a will if required in a crisis time:
- A lawyer is not required for the drafting of a will. While it is best to have a legal review of such documents, in a crisis a will can also be prepared by the testator themselves.
- The will should clearly list all the assets of the testator and its details. It should also detail the beneficiaries to whom the assets are being provided to. Providing accurate information will help prevent disputes in regard to the identification or mismanagement of assets.
- A will should provide details of an executor if one is being appointed.
- The language of the will need not be technical; but it must be clear, unambiguous, a leave no room for doubt.
- The will should have a declaration from the testator that the will has been drafted willingly without coercion, undue influence, or fraud and is the express wish of the testator. It should also state that the testator fully understands the actions of drafting and execution of this will. Providing this declaration will help protect the document against disputes.
- The will should also state that the testator is of sound mind and has understood the dispositions made would also help protect the will against disputes.
- The will does not have to be notarised or registered by law. However, registering a will can essentially provide an added layer of protection against disputes.
Concluding Remarks:
It is often difficult to discuss matters of death and inheritance, however, in times of crisis, it is often best to be prepared. Documenting wills can provide some certainty and confidence to both testators and family that their family matters will be taken care of. Wills can help provide security for family members and testators even in times of crisis.
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