Holographic Will
Querist :
Anonymous
(Querist) 29 July 2011
This query is : Resolved
Is holographic will recognized in India?
Scenario : Testator handwrote a will under an assumption that it is a holographic will and it requires no witness and also mentions this in the will. All other formalities(signature.. format.. language) are met and the intention is very clearly stated. There is no other will. The evidence of Testamentary Intent is very clear from the will.
1) Would it still be considered an invalid will?
2) What happens in the absence of statutory requirements?
I came across a statement - "In the absence of statutory requirements, written instruments have been held to operate as wills, in whatever form or with whatever name they might have come into existence." Is this a true statement?
Advocate Rajkumarlaxman
(Expert) 29 July 2011
Holographic wills are hard to prove and there are numerous restrictions placed on them. In some jurisdictions, holographic wills may be executed only by military personnel actually involved in armed conflict or by sailors at sea, and such wills have limited duration. Even in states where holographic wills are generally recognized, their validity must still be proved through witness testimony, handwriting experts, etc.
Secondly, a will is an instrument by which you bequeath property interests.
It differs from state to state. A holographic will is nothing more complicated than a will written and signed completely in your own handwriting. You have to designate that the writing is meant to be testamentary. You do this by indicating that it is your last will and testament on the first page. It should be the first thing you write down on the paper. You also need to make sure holographic wills are enforceable in your state.
R.Ramachandran
(Expert) 29 July 2011
"Holograph Will" is one which is wholly in the handwriting of the testator.
The law makes a great presumption in favour of the genuineness of a holograph Will for the reason that the mind of the testator in physically writing out his own Will is more apparent ina holograph Will than where his signature alone appears to either a typed script or to a script written by somebody else. [Calcutta High Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar AIR 1960 Cal. 551].
Thus, it can be said without fear contradiction that Holograph Wills are recognised in India.
However, according to Section 63(c) of the Indian Succession Act in respect of unprivileged Wills (the will in the instant question is an unprivileged Will) prescribes the condition that
"The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
Thus, even in respect of Holograph Will, there is no dispensation from the requirement for attesting witnesses.
In the instant case you say that the testator has not obtained any attesting witness since he was under the impression that there is no such requirement.
In view of the facts involved in the case, the answer to your pointed questions would be:
1) Would it still be considered an invalid will?
YES, IN THE ABSENCE OF THE ATTESTING WITNESSES, THE WILL IN QUESTION WILL BE CONSIDERED AN INVALID WILL.
2) What happens in the absence of statutory requirements?
I came across a statement - "In the absence of statutory requirements, written instruments have been held to operate as wills, in whatever form or with whatever name they might have come into existence." Is this a true statement?
The above statement may be true as regards any statutorily prescribed format, but not with reference to other statutorily prescribed requirements for a valid will.
Therefore, in the absence of compliance of statutory compliance, the will in question will be an invalid one.
