Wills which are handwritten by the testator (person making the will for the transfer of inheritance as per his or wishes) are called holographic will. The will can be handwritten in part or full.
A holographic will is valid if it fulfills the conditions of Section 59 of Indian Succession Act, i.e. the person making the will is not minor and is a person of sound mind.
Section 63 of Indian Succession Act, provides further conditions regarding its execution for a will to be constituted as valid which are as follows:
- The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
- The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
- 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.
Registration of Will is not mandatory in India under Section 17 and Section 18(e) of the Registration Act, 1908. However, it is advisable to get the will registered to avoid the conflict in future regarding its validity and genuineness, as it is difficult to prove valid, if unregistered. So, it is not necessary that holographic will should be registered for it to be constituted as valid but registration avoids conflicts regarding its validity or genuineness in future.
In Mrs. Joyce Primrose Prestor(Nee … vs Miss Vera Marie Vas & Ors, JT 1996 (4), 333 1996 SCALE (3)596 on 12 April, 1996, Supreme Court held that in the case of “holograph Wills”, the presumption of due execution and attestation is all the more – a greater presumption as It is one which is wholly in the handwriting of the testator.
The Calcutta High Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar (AIR 1960 Cal. 551 at P. 552) stated about such a Will, thus:-
“The whole of this Will was written in the hand by the testator himself in English. The handwriting is clear and firm. The law makes a great presumption in favor of the genuineness of holograph will for the very good reason that the mind of the testator in physically writing out his own will is more apparent in holograph will than where his signature alone appears to either a typed script or to a script written by somebody else.”
So, a holographic will is presumed to be more genuine and valid than any other ordinary will.