In the realm of estate planning, creating a Will is essential. It acts as a safety net for assets, preserves a lifetime's legacy, and secures ongoing financial well-being for the family. However, while drafting a Will is a fairly straightforward task, since a Will only comes into effect after the demise of the person who made it, the possibility exists that it may be. challenged or disputed. To safeguard against this, the Testator, ie the person making the Will, should have additional measures in place to avoid conflicts and ensure that their wishes are carried out as intended.
Securing Your Will Against Potential Challenges
Making a Will in India is a simple process where the Testator, or the person making the Will, needs to be a major (above the age of 18) of sound mind, declaring their wishes on a simple paper. This paper then needs to be signed by the Testator in the presence of two attesting Witnesses. Nowadays, Wills can also be conveniently generated via an app or website in a cost-effective, hassle-free manner. The first step is to ensure you have fulfilled all the criteria above to create a legally valid Will.
However, much like any legal document, a Will too can be challenged, causing delays and burdening the grieving family. Some of the most common reasons for Wills being challenged in court are forgery, unsound mind of the Testator, coercion, questions on the originality of the document, and unequal distribution of assets among disgruntled family members. In such cases, it would be wise for the Testator to take additional measures to strengthen the robustness of their Will. Two ways a Testator can do this is by adding a medical certificate from a doctor (as proof of sound mind) and registering their Will.
Another powerful method to safeguard one’s Will is by video recording the Will-signing process. This can act as proof of the Testator’s wishes, especially if it is likely to be challenged in court.
Today, we can find several cases that provide precedence for the use of video recordings in court to validate the authenticity of a Will in question. Take, for example, the landmark case of Sayar Kumari vs State & Ors, where the Delhi High Court emphasised the significance of video recordings as an added security measure for validating the Will. In this case, the Testator had excluded her son due to his ill-treatment of her. He sought to challenge his mother’s Will in court. The court, post evaluating prima facie evidence, also considered a video recording of the Will's execution, backed by Witness testimonies. The court relied on this video evidence to confirm the Testator's sound mental state during execution. This case legitimised the use of video evidence in Will cases, while also encouraging the use of modern technology for secure documentation and reduced disputes over validity.
Yet again, in the case of Shilpa Khullar Sood vs Vipul Khullar on 29 July 2021, where a video-recorded oral Will's validity was contested, the court took a view that an oral statement duly recorded on an electronic medium is an acceptable document. With Witnesses present as valid evidence, the court finally upheld the decision in favour of the Testator, based on the video evidence showing that the Testator was mentally sound and aware of the recording's purpose and content.
Indian Courts Back Video Evidence
In India, family disputes account for 76% of litigation, burdening the legal system needlessly. To address this, courts are actively seeking solutions. Given the established precedent from previous cases, video recordings have emerged as a legitimate and valuable tool to substantiate the authenticity of contested Wills.
Additionally, retaining such videos can effectively clarify the Testator's intentions, even amid family conflicts. This preemptively reduces challenges to the Will's authenticity, ensuring a smoother and more streamlined process of estate administration.
Tips For Video Recording Your Will
Here are some useful tips to keep in mind.
- Ensure both you, as the Testator, and your Witnesses are clearly visible within the frame. Also, ensure everyone's voice is audible without any background disturbances.
- In the recording, the Testator should clearly state the contents of the Will, including the asset distribution to the Beneficiaries, and the appointment of Executor and Guardian.
- State that you have created the Will in sound mind and without coercion.
- Ensure that the signing of the Will by the Testator and the two Witnesses is captured.
- Keep the digital copy secure with yourself in a digital storage device, along with your Will.
- Keep your Executor and trusted family members informed of the video recording. This way, if required, they can use it to defend your Will in court.
How Yellow Can Help
At Yellow, we offer simple solutions to ensure your Will's safety and validity. Along with generating your Will, you can also easily upload a video recording of your Will-signing process on our app. This video recording can be stored and accessed at any time by the Testator, and their family members, through an encrypted and secure method.