The enactment of will to give away assets after our death goes back to ancient Greece. The will, finds its root in 17th - century English laws and it is currently used in India in its succession laws. Signature with ink in presence of witness has been a prevalent requirement of valid will dating back to ages. It may be handwritten, drafted by a lawyer or typed on a home computer.[i]
However currently in the age of digital era, there is growing movement to legitimize e-signatures for wills and trusts, allowing online completion of the entire process online, without the need of a lawyer or notary.[ii] The Uniform Law Commission, a non-profit US-based organization, that proposes laws for US states to adopt is driving force behind this.[iii] Electronic signatures are already acknowledged in Nevada and Indiana.[iv]; Florida and Arizona have also adopted similar laws in their states. Other states are also planning to follow the guidelines of this commission.
In India, welcoming such a revolution calls for caution. There have been persistent challenges in the way in which digital evidence is recorded, the authenticity of a digital signature and the question of its legitimacy and enforceability in probate proceedings, etc. Aside from the judgment given in Anwar v. Basheer[v] along with a few other case laws, there is little or no direction on the admissibility of digital evidence, further intensifying the uncertainty of the proposition of digital wills. Legislators today are challenged constantly to tailor legislations suitable to meet the dynamic needs of this digital age. The digital revolution, its global presence and its impact on every aspect of a citizen's life will keep growing and hence legislation need to align to accommodate this change.
Indian Succession Act was not mapped out with a thought process that could have possibly foreseen tremendous evolution in the technological progress of India. The aspect of witnesses being present at the time of signing of the will by a testator must remain untouched so as to arrive at a conceivable yet strict standard in terms of determining the authenticity and the law must only incorporate the medium change of such will be drafted. As of yet, Indian populace and Courts are still not entirely provisioned to engage with a change of such an extent.
The scope for digital wills holds a large potential and can be enforced through well-structured legislation keeping in mind privacy concerns and possibilities of data breaches and allowing for the discretion of Courts in determining the authenticity of a will in line with the intention of the testator.
This Article Does Not Intend To Hurt The Sentiments Of Any Individual Community, Sect, Or Religion Etcetera. This Article Is Based Purely On The Authors Personal Views And Opinions In The Exercise Of The Fundamental Right Guaranteed Under Article 19(1)(A) And Other Related Laws Being Force In India, For The Time Being.
