IS A “HANDWRITTEN WILL” ON A DIARY PAGE LEGALLY VALID?
Demystifying Holographic Wills in India
Introduction
Every year, several thousand families in India find themselves embroiled in acrimonious battles over property not due to a lack of will but because of a will found scribbled in a book or loose leaf. Indian courts are brimming with cases where distraught family members are contesting the authenticity of the handwritten notes hidden somewhere in the drawers and whether they can be considered a valid will at all. Everything hinges on the question: family houses, farmland, savings of a lifetime, and precious family jewels.
There are about 1.4 billion people living in India, and it is always estimated that fewer than 10% of Indians create any form of will. Of those who prepare a will, quite a lot prefer writing their intentions in handwriting on diary sheets or even loose papers, without realizing whether they would be legally binding or not.
Take the following example: A sick elderly person from Lucknow is not able to meet a lawyer because of deteriorating health conditions, and therefore he writes down his last wishes on that evening in his personal worn-out diary book. The person declares who shall receive his property after death, who shall inherit his bank account balance, and who gets all his jewelleries. He signs his name at the end. He does not share his wish with anyone. Weeks later, the elderly man dies. The family discovers his diary. The eldest son claims it to be an effective will. The daughter claims that it is just a note from diary. And the youngest son claims that it must be on stamp paper. Confusion reigns supreme – but only one among them is right.
This article explains one of the most misunderstood issues of Indian Succession Law, which is: Can a will handwritten on the page of a diary be effective in India? We discuss the provisions of Indian Succession Act, 1925 (hereinafter “the Act”) – Sections 2(h), 57, 58, 59, 63, 65, 66, 67, 71, 74, and 213 – and clarify what is holographic will along with explaining validity/voidness criteria.
What Is a Will? The Legal Foundation
- Definition Under Statute-Section 2(h)
A “will” is defined under Section 2(h) of the Indian Succession Act, 1925 as the “legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.” A “codicil” is defined under Section 2(b) as an instrument made with reference to a will and which explains, alters, or adds to the dispositions therein. A codicil shall form part of the will. The maker of the will is known as the “testator” and the recipient of the will as “legatee” or “beneficiary.”
- Who can make a Will-Section 59
According to section 59 of the Indian Succession Act, 1925, everyone of sound mind, and not being a minor, is able to make a will for disposal of his property. This section consists of four explanations, which clarify all the doubtful situations: if a person is deaf, dumb or blind, but he knows what he does, such a person shall not be considered incapable of making a will (Explanation 2); a person who suffers from insanity may make a will at intervals when his mind is sound (Explanation 3); no one can make a will when such a person is in the state, irrespective of the cause whether he is under the influence of alcohol or drugs, suffering from some illness or because of anything else of not knowing what he is doing (Explanation 4).
Meaning of Holographic Wills and Its Place in the Indian Legal System
“Holographic” comes from Greek “8” meaning “whole” and “graphe” meaning writing. A holographic will is one that is entirely handwritten by the testator, duly dated and signed. While in some legal systems like that of France and some states in the United States of America, there is no need for a holographic will to have any witnesses at all, the Indian system of inheritance law differs.
There is no mention of “holographic wills” in the Indian Succession Act, 1925. The Indian concept similar to a holographic will is found in Section 66(2)(a) wherein a soldier, airman, or mariner can make a will during his period of service completely in handwriting without any signature or attestation. On the other hand, the normal conditions laid down in Section 63 will be required in its entirety by any normal person in making his will.
The Legal Framework Under the Indian Succession Act, 1925
- Applicability — Sections 57 and 58
Section 57 of the Indian Succession Act, 1925 extends the provisions regarding testamentary succession contained in Part VI of the Act to the Hindus, Buddhists, Sikhs, and Jainas in certain territorial instances as follows: (a) the will made on or after 1st September 1870 within the territories which are subject to the Lieutenant-Governor of Bengal or the original civil jurisdiction of the High Courts of Madras and Bombay; (b) a will relating to any immovable property in the territories specified above whether made in such territories or elsewhere; and (c) all such wills made on or after 1st January 1927 not falling under the ambit of (a) and (b) above.
Section 58 of the Indian Succession Act, 1925 is the most important exclusionary section. It provides that part VI shall NOT be applicable to the testamentary succession of the property of any Muhammadan, and—except as provided under Section 57—to any Hindu, Buddhist, Sikh, or Jaina. The Muslims are governed by the Muslim personal law which applies to them through the Muslim Personal Law (Shariat) Application Act, 1937. While Hindus, Sikhs, Jains, and Buddhists are governed under Part VI only to the extent of the provisions of Section 57.
Hindus Testators’ Note
Whereas the provisions of Part VI may not be uniform among all Hindus under Section 58, the Indian judiciary, nonetheless, adheres to the rules of Sections 63 concerning the execution of Hindu Will, that include writing, signing, and the presence of two witnesses. Two witnesses are always the safest bet, irrespective of personal law.
- Execution of Unprivileged Wills- Section 63
Section 63 of the Indian Succession Act, 1925 lays down rules for all those persons who are not soldiers in expedition or warfare, airmen employed so, or mariners on board a ship at sea. All others, comprising most of the Indian populace, have three pre-requisites:
Writing: The will has to be written on any material like the page of a diary, ordinary paper, or any notebook sheet. There is no stamp duty on wills under the Indian Stamp Act, 1899. There is no need of stamp paper.
Signature: Sections 63(a) & 63(b): In Section 63(a), the testator should sign or put his mark on the will or it should be signed by some other person in presence of the testator and according to his directions. In Section 63(b), the signature or mark should be made in a way that it would appear that the intention behind it was to make the writing operative as a will. This means the signature should be made in such a way as it will be evident that the whole document is the last wish of the testator. A thumb impression is equally valid, but with testamentary intention.
Two Attesting Witnesses: Section 63(c): The will should be witnessed by two or more persons. It should be signed by persons who: have seen the testator sign his name or make his mark, or have seen some other person sign the will in the presence and by the direction of the testator, or have received from the testator a personal acknowledgment of his signature or mark; and who have themselves signed the will in the presence of the testator. Notably, the Act provides that it is not essential that more than one witness be present at the same time, nor is any particular form of attestation necessary. The witnesses do not need to be aware of the terms of the will.
Section 67: Beneficiary as Witness
A will shall not be held to be insufficiently attested merely because the legatee (beneficiary) or the wife or husband of a legatee signs as an attesting witness. But the gift or bequest made to such legatee shall be void. The will remains good but the beneficiary-witness loses his or her legacy. Always appoint disinterested witnesses who get nothing under the will.
- Privileged Wills — Sections 65 and 66
Who can make privileged will? Any person who is a soldier and employed on any expedition or is engaged in actual warfare, any person who is an airman and similarly employed or engaged, or any mariner at sea; provided that such person has attained the age of eighteen years, as per Section 65 of the Indian Succession Act, 1925.
How are privileged wills executed? As per Section 66 of the Indian Succession Act, 1925, privileged wills can be either written or oral. As per Section 66(1), privileged wills may be written wholly by the testator himself and need not be signed or attested; this is the only genuine holographic will under Indian law. As per Section 66(2)(a), privileged wills may also be made by someone else but signed by the testator and not attested. As per Section 66(2)(g), a privileged will may also be an oral will made in the presence of two witnesses present at the same time. As per Section 66(2)(h), a privileged oral will becomes void after one month, from the date of cessation, of the right of the testator to make a privileged will, provided that he is alive.
- Alterations After Execution — Section 71
Section 71 of the Indian Succession Act, 1925 says that no obliteration, interlineation, or other alteration which may be made in any will not privileged after the execution thereof shall have any effect unless it has been executed in like manner as the will itself. The proviso says that an alteration is properly executed if the signature of the testator and the subscriptions of the witnesses appear in the margin or near the alteration, or at the foot of a memorandum referring to it written elsewhere in the will. In simpler terms: If you strike out or write words after executing the will, those changes are void unless the testator as well as both the witnesses sign on them separately.
Section 74 – No Technical Words Required
Section 74 of the Indian Succession Act, 1925 says that it is not necessary that any technical words or terms of art be used in a will – it is enough that the wording is such that the intention of the testator can be understood from it. In simpler terms, a will in plain language is perfectly valid according to Indian law.
Is a Diary-Page Will Valid? The Direct Answer
- The Medium Is Irrelevant
Any will be penned down on a diary page will be entirely valid as per Indian law, provided it fulfills the requisites set out in Section 63. There is nothing in the Act that stipulates use of stamp paper or official stationery or any other specific writing medium. The Indian Stamp Act, 1899 does not impose any stamp duty on wills. A diary page, plain white paper, a letterhead or even a page from a notebook can be used for the purpose, equally well under the law. Anybody who demands stamp paper for a will is wrong.
- Checklist for a Valid Will
- The will has to be in writing on any surface, including a diary page, satisfying the requisite.
- The testator must be of sound mind and be above the age of 18 years, acting of his own volition — Section 59.
- The testator must sign or make a mark, which clearly identifies the document as a will, as per Sections 63(a) and 63(b).
- Two witnesses must have seen the testator sign and have also signed the will in the presence of the testator, as per Section 63(c).
- Both witnesses should be of sound mind and should not be beneficiaries of the will – Section 67.
- It should be apparent from the language of the will that the testator intends to make the will – Sections 2(h) and 74.
- Though a date is not compulsory under the law, it is highly recommended because the most recently made will will be accepted in court.
- The Penalties for Making a Will Without Witnesses
According to Section 63 of the Indian Succession Act, 1925, a will which does not have the attestation of two witnesses is void for all purposes, no matter how clearly the intention of the testator is reflected therein. This has been ruled in the case of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357.
Caution
In case you are a member of the Christian community, Parsi, or belong to any other community who is fully bound by Part VI of the Indian Succession Act, 1925, your Will written with your own hand would be VOID without two witnesses in terms of Section 63 of the act.
Registration, Probate, and the No-Notary Rule
- Registration Is Optional but Advisable
Section 18 of the Registration Act, 1908, treats wills as documents which can be registered optionally. However, according to Section 40 and Section 42 of the Registration Act, 1908, the Testator may deposit his/her will in safe custody with the Sub-Registrar of Assurances. The will deposited in such a manner remains sealed till the death of the testator and cannot be tampered with and carries high value as evidence in any legal dispute. High importance is attached by courts to the registered will, especially in cases where the sanity of the testator and the handwriting is challenged.
- Probate – Section 213
Section 213(1) of the Indian Succession Act, 1925 provides that no right as executor or legatee can be proved in any court of justice unless a court of competent jurisdiction in India has granted probate of the will or letters of administration with the will annexed.
Section 213(2) provides a limitation on this requirement. It does not extend to Muhammadans, extends to Hindus, Buddhists, Sikhs, and Jainas only where the will comes under Section 57(a) or (b), and to Parsis dying after the commencement of the Indian Succession (Amendment) Act, 1962 in the local limits of the original civil jurisdiction of the High Courts at Calcutta, Madras, and Bombay, and beyond such limits where the will deals with immovable property situate within such limits. In actuality, probate is mandatory in Calcutta, Bombay, and Madras for the above-mentioned classes. Probate for Hindus not in the territories mentioned is voluntary but strongly advised in the case of large and contentious estates.
A handwritten diary will be submitted for probate subject to meeting the requirements of Section 63. The court will examine the attesting witnesses and may seek an expert opinion on handwriting. Identification of the handwriting of the testator by a person acquainted with it is admissible under Section 67 of the Indian Evidence Act, 1872.
- No Notary Required
Notarization of the will is not necessary in India. There is no provision in the Indian Succession Act, 1925 for notarization being mandatory. There is no provision in the Notaries Act, 1952, for notarization of wills. Notarization of the will and non-notarization of the will are the same in terms of validity, provided that Section 63 is fulfilled.
What Is NOT Required for a Valid Will in India?
Stamp paper Notarization Registration (advisable) Lawyer Court’s approval while alive of the testator. What is needed according to Section 63: Written on any paper Signature properly executed by the testator [Ss. 63(a) & 63(b)] Witnesses of majority age signing in the presence of the testator [S. 63(c)].
Common Mistakes That Invalidate a Handwritten Will
Two Attesting Witnesses -Section 63(c): The most fatal and common mistake. The will is void unless it is made by a testator before two witnesses in accordance with section 63(c), who are present and sign at the time of making the will.
Beneficiaries Serving as Witnesses -Section 67: The will is valid but the benefit of the witness-beneficiary becomes void. Make sure you use two disinterested parties for witnessing your will and those people should not take anything from your will.
Vague or Ambiguous Wording- Section 74: You do not need any technical terms here but you have to be able to determine what the testator meant from the language used. All of your properties should be described clearly along with naming all of your beneficiaries by their full names and relations.
Unattested Changes Made After Execution- Section 71: Anything written later on or removed from your will by lines is void unless it is signed by the testator and the witnesses to your will right next to those changes.
Diaries Cannot Be Wills- Section 2(h): The statement “I wish Priya will inherit my savings” cannot be considered a will. A will must have a legal declaration of the intention, a declaration of intent that makes it clear that the writing must act as a will upon the death of the maker of the will.
Testator Was Mentally Incapable at the Time of Writing-Section 59 (Explanation 4): A will written by a person who was suffering from an ailment and did not know what he or she was writing is null and void. In case of doubt regarding mental fitness of the testator, medical certificate can be very useful.
How to Make a Valid Handwritten Will Today — Step by Step
- Write in your own handwriting in any piece of paper: “This is my Last Will and Testament, hereby revoking all previous Wills made by me.”
- Mention your full name, age, permanent address, and date when the will is written.
- Mention “I am of sound mind and I hereby make this Will freely and without any coercion or undue influence” – this would take care of Section 59.
- List all the items of property for distribution: Describe each property in detail (property address, Bank account No., Survey No., etc.) and mention the beneficiary along with his/her full name and relationship.
- Mention an Executor who will perform your last will and testament. The executor is the person who executes the will [Section 2(c) of the Act].
- Sign your will in such a manner as to operate on the whole of the will – Section 63(a) and 63(b)
- Two Witnesses must sign your will in your presence after seeing you signing it, each in his/her own handwriting mentioning his/her full name and address and stating “I have witnessed the testator sign this Will in my presence on this date.”
- Proceed to have the will registered at the Sub-Registrar’s office, per Sections 40 and 42 of the Registration Act, 1908, for full legal protection from any future legal wrangling.
Conclusion
This is the definitive answer to the primary question posed in the topic. It is not the method but the actual content of the will that is important; it must be signed properly per Sections 63(a) and 63(b) and witnessed by two adult witnesses per Section 63(c) of the Indian Succession Act, 1925.
It is important to understand the crucial difference between privileged wills as per Section 66, for soldiers and airmen and mariners under Section 65 and unprivileged wills for the rest of people as per Section 63 of the Indian Succession Act, 1925.
Only those who come within the purview of Section 65 are permitted to write a will in their own handwriting without signing or witnessing. Everyone else has to comply with Section 63.
The law of succession in India does not require use of stamp paper, a notary, registration, or even a lawyer. The law requires clear intent as stipulated in Sections 2(h) and 74, correct signature as per Section 63(b), and two independent witnesses as per Section 63(c). This means that these three things form the foundation upon which all legal wills in India stand.
If you were thinking about writing a will but were under the impression that it entailed expensive procedures, this article will dispel this misconception once and for all. Writing a well-considered and well-witnessed handwritten will – written now, in your own handwriting, on any piece of paper, without stamp duty, without a notary, and without a lawyer – is one of the greatest favors you can do for your family.
Bibliography
Primary Legislation
- Indian Succession Act, No. 39 of 1925, INDIA CODE (1925), §§ 2(b), 2(c), 2(h), 57, 58, 59, 63, 65, 66, 67, 68, 71, 74, 213.
- Indian Stamp Act, No. 2 of 1899, INDIA CODE (1899).
- Registration Act, No. 16 of 1908, INDIA CODE (1908), §§ 18, 40, 42.
- Hindu Succession Act, No. 30 of 1956, INDIA CODE (1956).
- Muslim Personal Law (Shariat) Application Act, No. 26 of 1937, INDIA CODE (1937).
- Indian Majority Act, No. 9 of 1875, INDIA CODE (1875), § 3.
- Indian Evidence Act, No. 1 of 1872, INDIA CODE (1872), § 67.
- Notaries Act, No. 53 of 1952, INDIA CODE (1952).
- Indian Succession (Amendment) Act, No. 16 of 1962, INDIA CODE (1962).
Case Law
- Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357 (India).
- Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 (India).
- Indu Bala Bose v. Manindra Chandra Bose, AIR 1982 SC 1126 (India).
- Pentakota Satyanarayana v. Pentakota Seetharatnam, (2005) 8 SCC 67 (India).
Secondary Sources
- Mulla’s Indian Succession Act (12th ed., LexisNexis 2010).
- Paras Diwan, Law of Succession (5th ed., Allahabad Law Agency 2014).
Author: Akanksha Priya
BA LLB, Business Laws