All you wanted to know about Will


What is a will?

Will is a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death. It includes codicil and every writing making a voluntary posthumous disposition of property. It is testamentary instrument by which a person makes disposition of his property to take effect after his death and which, in its own nature, is ambulatory and revocable during his life. Thus, a Will can be changed by the executants as and when he so likes. It is a secret and confidential document which the executants is never ordered to produce.

What is living will?

A living will also known as an advance directive is a legal document that specifies the type of medical care that an individual does or does not want in the event that he is unable to communicate his wishes.

In the case of an unconscious person who suffers from a terminal illness or a life threatening injury, doctors and hospitals consult his living will to determine whether or not the patient wants life sustaining treatment, such as assisted breathing or tube feeding. In the absence of a living will, decisions about medical care become the responsibility of the spouse, family members or other third parties. These individuals may be unaware of the patient’s desires, or they may not wish to follow the patient’s unwritten, verbal directives.

Why is it being considered by the supreme court. Is it a landmark judgement?

A Constitution Bench of the Hon'ble Supreme Court of India, comprising of the Hon'ble Chief Justice of India, Hon'ble Mr Justice A M Khanwilkar, Hon'ble Mr Justice A K Sikri, Hon'ble Dr Justice D Y Chandrachud and Hon'ble Mr Justice Ashok Bhushan on 9 March 2018 legalized Passive Euthanasia by giving legal sanction to 'Advance Directive' or 'Living Wills'.

Guidelines on execution and enforcement of advance directives

The Court noticed that there is no legal framework regarding Advance Medical Directives in India and therefore issued comprehensive guidelines and safeguards pertaining to Advance Directives. The said guidelines are to remain in force till the Parliament introduces legislation in this regard. The guidelines are as enlisted below

Who can execute the Advance Directive and how?

  • The Advance Directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document.

  • It must be voluntarily executed and without any coercion or inducement

  • It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering.

What should it contain?

  • It should clearly indicate the decision relating to the circumstances in which withholding or withdrawal of medical treatment can be resorted to.

  • It should mention that the executor may revoke the instructions/authority at any time.

  • It should disclose that the executor has understood the consequences of executing such a document.

  • It should specify the name of a guardian or close relative who, in the event of the executor becoming incapable of taking decision at the relevant time, will be authorised to give consent to refuse or withdraw medical treatment in a manner consistent with the Advance Directive.

How should it be recorded and preserved?

  • The document should be signed by the executor in the presence of two attesting witnesses, preferably independent and countersigned by the jurisdictional Judicial Magistrate of First Class (JMFC) so designated by the concerned District Judge.

  • The witnesses and the jurisdictional JMFC shall record their satisfaction that the document has been executed voluntarily and without any coercion or inducement or compulsion and with full understanding of all the relevant information and consequences.

  • The JMFC shall inform the immediate family members of the executor, if not present at the time of execution and make them aware about the execution of the document.

  • The JMFC shall handover copy of the Advance Directive to the family physician, if any.

When and by whom can it be given effect to?

  • In the event the executor becomes terminally ill and is undergoing prolonged medical treatment with no hope of recovery and cure of the ailment, the treating physician, when made aware about the Advance Directive, shall ascertain the genuineness of the same from the jurisdictional JMFC before acting upon it.

  • It will be open to the executor to revoke the document at any stage before it is acted upon and implemented.

What if permission is refused by the Medical Board?

  • If permission to withdraw medical treatment is refused by the Medical Board, the executor of the Advance Directive or his family members or even the treating doctor or the hospital staff can approach the High Court by way of writ petition.

  • The High Court shall hear the application expeditiously after affording opportunity to the State counsel.

Revocation of Advance Directive

  • An individual may withdraw or alter the Advance Directive at any time she has the capacity to do so and by following the same procedure as provided for recording of Advance Directive. Withdrawal or revocation of an Advance Directive must be in writing.

Where there is no Advance Directive

  • The Court has held that the same procedure and safeguards that apply in cases where an Advance Directive exists, will be followed when there is no Advance Directive. However, the Court has prescribed an additional procedure to be followed in such cases.

  • In cases where the patient is terminally ill and undergoing prolonged treatment in respect of ailment which is incurable or where there is no hope of being cured, the physician may inform the hospital which, in turn, shall constitute a Hospital Medical Board. This Board shall discuss with the family physician and the family members and record the minutes of the discussion in writing. During the discussion, the family members shall be apprised of the pros and cons of withdrawal or refusal of further medical treatment to the patient. If they give consent in writing, then the Hospital Medical Board may certify the course of action to be taken. Their decision will be regarded as a preliminary opinion.

  • The rest of the procedure will remain the same as is followed in case there is an Advance Directive.

How will it safeguard ill patients

The Supreme Court has come out with safeguards on "advance medical directive" or 'living will' which would enable a terminally ill patient or a person in persistent vegetative state (PVS) to refuse medical treatment.

A five-judge constitution bench, which recognised that a terminally ill patient or a person in PVS can execute an "advance medical directive" to refuse medical treatment, spelt out the safeguards saying such a directive "cannot operate in abstraction".

The safeguards would remain in force till Parliament adopts a legislation on the matter, it said.

"The advance directive can be executed only by an adult who is of a sound and healthy state of mind and in a position to communicate, relate and comprehend the purpose and consequences of executing the document stressing that the directive must be "voluntarily executed" without any coercion and should have characteristics of informed consent without undue influence.

"It shall be in writing clearly stating as to when medical treatment may be withdrawn or no specific medical treatment shall be given which will only have the effect of delaying the process of death that may otherwise cause him/her pain, anguish and suffering and further put him/her in a state of indignity.

How Living Wills Work

A Living Will allows you to state whether you want your life prolonged in the event that you are suffering from a terminal illness, or are in a permanent state of unconsciousness. Your Living Will indicates whether you want certain treatments withheld or withdrawn if their function is only to prolong the dying process or to keep you ‘alive’ where there is no realistic hope of recovery.

In understanding how Living Wills work in practice, it is important that you realize that Living Wills only come into effect when you are:

  • suffering from a terminal condition, a persistent comatose condition or in a permanent vegetative state

  • there is no real prospect of recovery and

  • unable to make and communicate your own healthcare decisions.

Living wills - where it can go wrong

The court will also decide on allowing passive euthanasia (to withdraw or withhold treatment) to a terminally ill patient with point of no return with sufficient safeguards. The bill recognises the concept of living will but does not make it binding on medical practitioners and says that it cannot be executed by any patient since it would be considered void.

Who will have final say in the matter

It is only at this point will the person nominated under your Living Will have any ability to enforce or revoke any of the instructions that you have set out in your Living Will. However, before this person can lawfully act, the law in the majority of states and indeed the terms of most Living Wills require that one or in some cases two doctors must first personally examine you and agree that you satisfy the conditions referred to above and that the application of medical procedures would only prolong the dying process. If the doctor or doctors agree that this is the case, then the medical procedures may be withdrawn or applied, depending on the choices expressed in your Living Will.

What is Doctor’s role in living will

Doctors across the country were today assigned a major role by the Supreme Court in giving effect to the "advance medical directive" or 'living will' of persons in persistent vegetative state and terminally ill patients who refuse to get medical treatment. Also,

  • Emergency medical technicians cannot honor living wills or medical powers of attorney. Once emergency personnel have been called, they must do what is necessary to stabilize a person for transfer to a hospital, both from accident sites and from a home or other facility. After a physician fully evaluates the person's condition and determines the underlying conditions, advance directives can be implemented.

  • Advance directives do not expire. An advance directive remains in effect until you change it. If you complete a new advance directive, it invalidates the previous one.

  • You should review your advance directives periodically to ensure that they still reflect your wishes. If you want to change anything in an advance directive once you have completed it, you should complete a whole new document.

Which are the countries progressed to this level

There are 12 countries with very high social progress to this level. They are Finland, Canada, Denmark, Australia, Switzerland, Sweden, Norway, Nether lands, United Kingdom, Iceland, New Zealand and Ireland.

Hope you enjoyed reading this publication


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