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28 May 2020
The COVID-19 pandemic has led to increased interest in succession planning, including through wills. However, there are considerable practical and legal challenges to consider when making a will while social distancing, isolation or quarantine measures are in place. This article discusses these challenges in an Indian context and suggests potential solutions. Although no solution is foolproof, and technology is not yet an ally, there are some measures that may help testators to overcome the various complications associated with creating a will.
The Succession Act, which was enacted in 1925, governs wills in India. Although introduced only a few years after one of the last major pandemics to affect India – the Spanish flu pandemic of 1918-1919 – the Succession Act does not ease the rules for making wills in times of such crises.
This lacuna was recognised by the Indian Law Commission in its 110th report on the act (1985). After analysing the laws of other countries (mainly civil law countries, unlike India, which is a common law country), the Law Commission recommended relaxing the strict rules which apply to the execution of a will by a person affected by a calamity when they reasonably apprehend their immediate death. According to the report, such a 'calamity' would cover instances of an epidemic or pestilence.
Unfortunately, this recommendation was not effected and the current law does not provide for the easing of legal formalities amid an outbreak such as COVID-19.
As per the Succession Act, any person who is of age of majority and sound mind can execute a will. The act mandates two key formalities in this regard:
The requirements for signing and attestation are relaxed only for wills executed by soldiers or members of the air force who are employed in an expedition or engaged in actual warfare and mariners at sea.
Contrary to popular belief, no stamp duty is payable on wills. Further, wills need not be notarised or registered.
While the above formalities for executing a will are not rigorous and can usually easily be complied with, during extraordinary situations such as the COVID-19 pandemic, testators will likely face certain challenges in meeting them, such as:
Potential solutions to these challenges are as follows.
Lack of access to a lawyer
While many lawyers are working remotely and are available to help parties prepare a will, where a testator cannot access a lawyer or needs to save time, they can prepare their own will.
A will need not be drafted by a lawyer. While a lawyer should be engaged to prepare a complex will, a simple will can be prepared by anyone. Further, an individual can execute a simple interim will now and expand when normal operations resume.
Notably, wills need not follow a particular format. A short will identifying the recipient of the testator's property after their demise and one or more executors to effect the terms of the will is sufficient.
Finally, wills need not be in English.
Printing a will
The law does not require wills to be typed and printed. Testators may write their will on any regular paper by hand. Such handwritten wills (known as 'holograph wills') are recognised by law. However, care should be taken to ensure that handwriting is legible and spelling errors are avoided.
This might be the most difficult formality to satisfy. For testators who reside with family members, it is tempting to make such family members witnesses due to ease of access. However, testators should avoid naming as a witness a person who will receive a benefit under their will (ie, a legatee). For Hindus, Jains, Sikhs and Buddhists, there is no legal prohibition in naming a legatee as a witness, but it is good practice not to do so. If no other witnesses are available, the testator may wish to create a new will once other witnesses becomes accessible. However, for Christians and Parsis, witnesses are legally prohibited from being legatees.
Family members who will not receive bequests under the will may be witnesses. For instance, if a testator bequeaths their entire estate to their spouse, their children may be witnesses as they are not legatees.
Alternatively, two trusted neighbours may be invited to attest a 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 a safe distance. If the testator has been admitted to a medical facility, the attendant healthcare practitioners may be requested to attest the will, provided that the testator is of sound mind.
Technology is reshaping daily life, particularly as the world adjusts to remote working. By adopting innovative approaches to digitise will making – such as allowing wills to be made by email or signed and witnessed via videoconference – barriers to will creation may be overcome. However, India law supports neither option.
The Information Technology Act 2000 permits the formation of contracts through electronic means, but excludes wills. Hence, preparing a will via email or documents with digital signatures affixed is prohibited. Further, the Succession Act requires witnesses to be physically present when the testator signs their will. Therefore, attestation by videoconferencing is inadequate.
In certain other jurisdictions such as Scotland, New Zealand and Jersey, the law has been temporarily updated to facilitate the digitisation of will creation in the present circumstances. Moreover, the UK Law Society has approached the government and the Solicitors Regulation Authority to address the legislative and regulatory barriers to executing wills in the current context, including requirements for witnessing wills, and the use of videoconferencing.(1)
Notably, in 2019 the Report of the Steering Committee on Fintech-Related Issues (constituted by the Indian Department of Economic Affairs, Ministry of Finance) recommended that the Department of Legal Affairs consider legislative amendments to permit digital alternatives in case of wills.(2) However, no amendments have been enacted as yet.
Although technological tools are not yet available to execute a will in emergency situations, COVID-19 will hopefully accelerate India's progress in this regard. Until the law is amended to expressly permit digital wills, testators should continue to prepare wills in the traditional paper format in the presence of witnesses.
For further information on this topic please contact Radhika Gaggar or Shaishavi Kadakia at Cyril Amarchand Mangaldas by telephone (+91 22 2496 4455) or email (email@example.com or firstname.lastname@example.org). The Cyril Amarchand Mangaldas website can be accessed at www.cyrilshroff.com.
(1) Further details are available here.
(2) Further details are available here.
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