CAN A WILL BE MADE BY WHATSAPP OR THROUGH ELECTRONIC MEANS , THE FUTURE OF DIGITAL INDIA
In today’s society, practically everything is done on the phone, including banking, shopping, talking to relatives, and sending vital documents, all using apps such as WhatsApp, email, and video conversations. As a result, it is reasonable for individuals to wonder if something as essential as a will may be created in this manner, via WhatsApp message, voice note, video recording, or email. This article examines this subject in a straightforward manner, using the real legislation that applies in India, so that the reader can understand where the law stands today and where it may go tomorrow.
WHAT THE LAW SAYS A WILL ACTUALLY IS?
A will is a legal document in which a person, known as the testator, specifies how his or her property shall be transferred upon death. In India, the Indian Succession Act of 1925 primarily governs wills for Hindus, Buddhists, Sikhs, and Jains.A will is defined in ‘Section 2’ of this Act as a formal declaration of a person’s desire about his property that he intends to carry out after his death. This Act does not apply to Muslims in India; they are regulated by personal law.
‘Section 59’ of the Act states that any individual of sound mind who is not a minor may create a will. Even if a person is deaf, dumb, or blind, he can form a legal will if he is conscious of what he is doing. So the law is very clear on who can write a will; the important question is how it must be prepared.
THE FORMALITIES A WILL MUST FOLLOW
This is where the law becomes stricter. ‘Section 63’ of the Indian Succession Act specifies the legal requirements for an unprivileged will, which is the most common type of will produced by most individuals. This clause states that the will must be in writing. The testator must sign it or leave his mark on it, or it must be signed by someone else in his presence and under his supervision. The signature must be done in such a way that it is clear that the testator meant to give effect to the document as his will.The most important aspect comes next. The will must be attested by two or more witnesses, each of whom must have witnessed the testator sign or leave his mark on the will, or have received a personal recognition of the testator’s signature. The witnesses must then sign the will in front of the testator. This implies that the testator and witnesses must be present at the same time and location in order for the will to be considered legitimate.
‘Sections 68 and 69’ of the Indian Evidence Act, which have been largely replaced by similar provisions in the Bharatiya Sakshya Adhiniyam, 2023, also support this requirement by stating that at least one attesting witness must be called to prove the execution of the will when it is presented in court, unless such a witness cannot be found.
Reading these provisions together, it becomes clear that a valid will under Indian law must be a physical document, written and signed, with witnesses physically present to see the signing take place.
WHY WHATSAPP AND EMAIL CANNOT BE USED TO MAKE A WILL
The Information Technology Act of 2000 typically recognises electronic records and digital signatures as genuine and equivalent to paper documents and physical signatures. This is why electronic contracts, agreements, and numerous electronic signatures are now recognised under Indian law. However, the same Act has a special exemption. ‘Section 1’ of the Information Technology Act, together with its first schedule, expressly says that the Act does not apply to a will as defined by the Indian Succession Act, or to any other testamentary disposition, regardless of its name. This implies that the legislation that recognises digital signatures and electronic documents as legally legitimate explicitly excludes wills.
As a result, a will typed and delivered over WhatsApp, a will attached as a PDF in an email, a will signed using a digital signature or an electronic signature app, or a will generated on any online will-making platform does not fulfil the criteria of ‘Section 63’ of the Indian Succession Act. There is no tangible writing in the traditional sense that courts need, and witnesses cannot be physically there to see the testator signing as required by law. As of now, India does not accept the notion of a digital will or an electronic will as a legally binding testamentary instrument.
SO WHERE DOES A WHATSAPP MESSAGE OR VIDEO FIT IN
Digital communication is not entirely worthless in this regard, even though a video recording or a WhatsApp message cannot constitute a valid will in and of itself. Video recordings of a person making a will have been recognised by Indian courts as supplementary evidence to bolster and support a written, properly executed will. This was acknowledged as early as 1985, when the Delhi High Court ruled that it was allowed to film a will’s execution on camera and that doing so may prove the will’s validity. Such a video serves to demonstrate issues that are frequently contested in court, such as whether the testator was of sound mind, whether
The purpose of such a recording is not to replace the written will, but rather to show points that are frequently challenged later in court, such as whether the testator was of sound mind, acting on his own free will, and if he was under any coercion, fraud, or undue influence at the time. A video of the testator clearly stating his preferences, followed by the physical signing of the paper document in front of witnesses, might be extremely important evidence if the will is disputed after the person’s death.
During the epidemic, when many individuals struggled to gather witnesses in person, the concept of loosening these rigorous standards was debated more seriously. Reports and commentary at the time pointed back to the Law Commission of India’s prior suggestions for making the procedure of executing a will simpler in urgent situations, while no permanent changes were made to ‘Section 63’.
WHATSAPP MESSAGES AS EVIDENCE , A SEPARATE LEGAL QUESTION
It is essential to recognise that WhatsApp chats, voice notes, and other electronic recordings are acceptable evidence in Indian courts; this is a well-established fact. The Bharatiya Sakshya Adhiniyam, 2023, which replaced the earlier Indian Evidence Act, takes the same basic approach as the earlier ‘Section 65B’, requiring a certificate to prove that an electronic record is genuine, has not been tampered with, and was generated by the device from which it is said to originate. Landmark decisions throughout the years, including verdicts in instances commonly known as Anvar P V, Shafhi Mohammad, and Arjun Panditrao Khotkar, have impacted how this certificate requirement functions in reality.
This implies that, if the right certificate and verification conditions are satisfied, a person’s WhatsApp message outlining his wishes for his property may be used in court as proof of his intents or state of mind at the time. However, whether the identical WhatsApp message may stand alone as a legitimate, enforceable will is a very separate legal topic. A legally completed testamentary instrument is not the same as evidence of intention. A court cannot issue probate or regard a WhatsApp message as the will itself since it does not comply with ‘Section 63’s’ formal criteria. However, it may examine the message to determine what the sender intended.
THE FUTURE OF DIGITAL WILLS IN INDIA
Even though digital wills have no legal status today, the discussion of altering this area of law is not new and has been gaining traction. As early as 1985, the 110th Report of the Law Commission of India on the Indian Succession Act, 1925, examined the formalities required to execute a will and recommended some relaxation of the strict rules for a person facing a calamity with a reasonable fear of death, though this was aimed at privileged wills for people in special situations rather than digital wills for the general public.
More recently, in 2019, the Steering Committee on Fintech Related Issues, established by the Department of Economic Affairs under the Ministry of Finance, recommended that the Department of Legal Affairs review legal processes related to financial services and consider allowing digital alternatives for documents such as powers of attorney, trust deeds, and wills in situations where the Information Technology Act does not currently apply. This advice has not yet resulted in any changes to the Indian Succession Act, but it demonstrates that the concept of digital wills is already being explored in official circles, particularly in terms of financial and digital asset planning.
The growing number of digital assets is also moving this discussion ahead. More individuals now own cryptocurrencies, online trading accounts, digital wallets, and cloud-based documents, and Indian succession law has yet to specify how such digital property should be inherited or who should have access to online accounts after a person’s death. Legal observers have noted that without a suitable framework, families may have trouble accessing a deceased person’s digital assets, which is anticipated to prompt politicians to hold a broader discussion on both digital assets and digital wills.
India is not alone in addressing this challenge, and seeing how other nations handle it provides insight into where the legislation may go. In the United Kingdom, the Law Commission published its final report on modernising wills law in 2025, recommending that electronic wills be allowed on an equal footing with paper wills, but only if they use a reliable system that can correctly identify the testator and witnesses, distinguish an authentic copy from other copies, and protect the document from unauthorised changes or destruction. This study also proposed giving courts the authority to accept other forms of testamentary evidence, such as electronic documents, video recordings, and sound recordings, in rare circumstances. This study also proposed giving courts the authority to accept other forms of testamentary evidence, such as electronic documents, video recordings, and sound recordings, in rare circumstances. A number of jurisdictions outside India have previously implemented legislation that recognise electronic wills, often necessitating precautions such as remote video witnessing, secure digital identity verification, and tamper-proof storage systems.
If India were to take a similar approach, any future law on digital wills would most certainly require significant protections, as the possibilities of fraud, impersonation, tampering, and undue influence are higher with something as delicate as a will than with an ordinary electronic contract. A viable solution would most likely require accurate identification verification of the testator, secure and traceable digital signatures, a proper means for witnesses to be linked to the signing process, even if done remotely, and protections to prevent the document from being changed after execution. Until Parliament enacts such a statute, and until the Indian Succession Act and the Information Technology Act are amended to work together on this point, digital wills will remain something India is discussing rather than something India has adopted.
THE PRACTICAL TAKEWAY
For anyone who sincerely wants to ensure that their property is divided according to their wishes after their death, the safe and legally sound method remains the traditional one. The will should be carefully written out, signed by the testator, and attested by two independent witnesses who observe the signing and subsequently sign the document in the testator’s presence. Registration of a will is not required under Indian law, but it adds an added layer of credibility and can help to reduce future conflicts.
Voice notes, video recordings, and electronic tools like WhatsApp can still be useful auxiliary tools. In the event that the will is later contested on the basis of mental capacity or undue influence, a video recording of the testator outlining his intentions and attesting to the fact that he is signing the instrument voluntarily may be preserved with the actual document. The tangible document, the signature, and the presence of witnesses cannot be replaced by such means, at least not under the current legal framework.
CONCLUSION
The way individuals interact, do business, and even handle their finances has all changed as a result of technology, but Indian will laws have not kept up. When read in tandem, the Indian Succession Act and the Information Technology Act make it abundantly evident that a will created only via email, WhatsApp, or any other electronic method, without a signed document and witnesses present in person, is not now enforceable in India. Videos and texts sent over WhatsApp can bolster a will and can be used as proof in court, but they cannot replace one. Government committees, increasing concerns over digital assets, and reforms in other nations all point to a future when electronic wills may ultimately be accepted, but that day has not yet come. Anyone who is serious about safeguarding their family and possessions should adhere to the conventional written and witnessed will, regarding electronic recordings as a helpful backup rather than the primary document itself, unless the law is explicitly changed to acknowledge digital wills.
By: Shifa Khan
