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Have you ever thought about what will happen to your emails if you have a Gmail or Hotmail account, or who will take possession of your photos, videos, instant messaging chats on sites like YouTube, Facebook, Twitter and LinkedIn if you die without making a will?

Further, who will get to own your online banking, mobile banking and app passwords, if such is the case? The answer: You will need a digital will.

A digital will can be defined as a legal method of protecting and bequeathing your digital assets like passwords, emails, data, intellectual property, or even online businesses, similar to the manner in which one would enlist and leave physical assets like property and cash for your next of kin.

The digital assets are entrusted to the next of kin or close confidant of a person by means of a document, duly signed by the person leaving his or her assets and instructions for the person to either use the assets or store them in a safe place like a digital locker that can be accessed online.

“Digital wills are slowly gaining popularity among people as they realize the need to protect valuable data, including physical records like bank details, health information, books, photos, music, etc., that is increasingly being converted from a physical to digital mode and being stored in the cloud. The digital will is signed off with a digital signature issued by the government, either with or without digital signatures of one or more witnesses," said Pavan Duggal, a Supreme Court advocate who specializes in cyberlaw and e-commerce.

Duggal said he has advised about 100 clients in the last three years on digital wills, “and the number is increasing, mostly by word of mouth, as people realize its importance". However, he did not share client details, citing confidentiality pacts.

On 19 August, Delaware became the first state in the US to enact a law called the “Fiduciary Access to Digital Assets and Digital Accounts Act", allowing executors of a digital will the same authority to take legal control of a digital account or device as they would of a physical asset or document.

India, though, is still a long way off from such legislation.

“The legislations in India presently do not recognize the concept of a ‘digital will’ or any other form of testamentary disposition by electronic means. The Indian Information Technology Act, 2000, in this regard has specifically excluded wills or other testamentary dispositions from the applicability of its provisions," said Ramesh Vaidyanathan, managing partner at Indian commercial law firm Advaya Legal.

In the absence of a specific law for a digital will in India, the execution and enforcement of the testator’s (person who has written the will) will is governed by the Indian Succession Act, 1925, according to Vaidyanathan. In some cases, like with respect to emails or social media pages, the beneficiary may have to request the company concerned such as Google Inc. or Facebook Inc. for permission to access and, if requested by the testator, keep the website or social media page alive after the death of the person. However, any online operation of the deceased’s bank account is illegal and a criminal offence, he added.

Making a digital will could also help since it can be monetized.

According to legal experts, online books or research papers, or valuable advertising content, professional photographs—all of which may be subject to copyright or patents—can be monetized after a person’s death on his or her instructions. The person authorized can then continue to run the digital business, or even sell it.

“In such cases, taxes may also be applicable and the digital will may also be contested in a court of law, just like an ordinary will. However, there needs to be more legal clarity on this since digital wills still make up just a fraction of all the wills made in India," said Daksha Baxi, executive director at Indian law firm Khaitan and Co.

The need of the hour, thus, is a more structured legislation to govern the use of technology and e-space in India, say legal experts. Moreover, since electronic documents can be manipulated, a major challenge is ensuring the authenticity of the contents of the will and genuineness of its execution, after a testator’s death.

The scope for digital wills in India still holds large potential, thanks to the burgeoning Internet user base and use of multiple digital devices.

“With the new Indian government promoting the use of e-governance, social media and technology to encourage the pace of growth in various sectors, and countries positively recognizing testaments made in electronic form, there is an expectation for recognition of such concepts in India," said Vaidyanathan.

Duggal added that despite India having “a largely touch-and-feel culture, making digital wills in the country rare and legal firms dealing with digital firms rarer still", digital wills could become popular as more people become comfortable with the online mode.

“Given the growing popularity of mobile phones, in the next five years, I expect even digital wills on mobile to become popular in India. Digital assets could even be bought and sold online with permission from the testator to the beneficiary in the future, like in the case of bitcoins today," he added.

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