DIGITAL WILLS: VALIDITY AND RISKS

Wills are one of the most important documents a person might sign in their life.

- CA Sreejith Kuniyil

It is a primary mechanism through which a person can determine how their assets are to be distributed after their death and it is only in the absence of a Will that the respective succession laws shall come into effect. Freedom to make a Will is one of the basic principles of common law.

Recently, the concept of “Digital Wills” or “E-Wills” are increasing in popularity. “Digital Wills” are Wills that are created, signed, attested or stored in electronic form. They offer convenience but there are concerns of its legal and evidentiary value. This article explains the current legal position, key risks and compares how India and other common law jurisdictions deal with electronic Wills.

What is a Digital Will?

A Digital Will has many forms, from being a Will drafted and stored as an electronic document such as a PDF or Word document, to being a Will signed using digital signatures or a Will executed with remote witnesses using audio or video links and it also encompasses digital records such as emails, video recordings and voice notes asserting the testamentary intent of a person. But not all these formats are legally valid in all jurisdictions. Freedom to make Will comes with certain legal restrictions, only when the legal formalities are satisfied does a Will truly become valid.

How Can You Make a Legally Valid Will in India?

There are only two valid ways to make a Will in India:

1. Traditional Physical Will

This is a Will written or typed on paper, signed by the person making the Will, and witnessed by two people who are physically present. The witnesses also sign the Will in the presence of the testator. This method is the most trusted and legally recognized under Indian law.