Last Will and Testament

Written and reviewed by CA Pritam Sharma | Updated: July 2026 | EasyTax Global IT Solutions Pvt. Ltd.

Almost every family that ends up in a decade-long property dispute had a member who meant to write a will. Not one who refused — one who intended to, next year, after the wedding, once things settled.

The strange thing is how little it takes. A will is one of the cheapest and simplest legal documents in Indian law, and it is surrounded by more folklore than almost any other. This guide covers what the law actually requires, what it does not, the traps that void perfectly well-intentioned wills, and the tax consequences your heirs will face.

What Is a Last Will and Testament?

Section 2(h) defines a will 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." Three ideas are packed into that line.

It is a declaration of intention — your wishes, not a contract with anyone. It concerns your property — you cannot will away what you do not own, which matters enormously for ancestral and coparcenary property. And it takes effect only on death, which means it is freely revocable until then (Section 62). You can change it, tear it up, or write a new one on a Tuesday afternoon without anyone's permission. A beneficiary named today has no right of any kind while you are alive.

"Last will and testament" is a historical doublet — "will" once covered real property, "testament" covered movables. In Indian law today, the words are used together out of tradition. A will is a will.

Who Can Make a Will?

Section 59: every person of sound mind, not being a minor, may dispose of property by will. That is the whole test. Not a fixed age beyond 18, not a wealth threshold, not a professional requirement.

A person who is ordinarily insane may make a will during a lucid interval. A person deaf, dumb or blind may make one if capable of understanding what they are doing. What defeats a will is Section 61: a will obtained by fraud, coercion or importunity — pressure that overpowers free agency — is void. This is the ground on which most contested wills are actually fought.

Legal Requirements: What Section 63 Actually Demands

Look at how short the mandatory column is. Sign it, get two people who watched you sign it to attest, keep it in writing. That is a valid will in India.

The Witness Trap That Voids Bequests

This is the single most common self-inflicted wound in Indian will drafting, and it deserves its own heading.

Section 67: a bequest to an attesting witness — or to the witness's spouse — is void. The will survives. The gift to that witness does not.

So the father who leaves his flat to his son and asks that same son to sign as a witness has just disinherited him from the flat. The will remains perfectly valid for everything else. The son gets nothing under it.

Rule: never let a beneficiary or a beneficiary's spouse witness your will. Choose two independent people, ideally younger than you so they are available to depose later. They need not read the will or know its contents — they only attest that they saw you sign. An executor may witness without invalidating a bequest to himself, but if he is also a beneficiary, do not risk it.

Will Registration: Optional, but Worth It

Registration is genuinely optional. An unregistered will is not weaker in law. But it is often weaker in court, and that distinction is what matters when a disappointed relative alleges forgery.

What registration buys: a Sub-Registrar has recorded that you personally appeared, were identified, and acknowledged the document. That makes "this signature is fake" and "he was not in his senses" much harder arguments to run. The registry also keeps a copy in safe custody, which solves the very real problem of a will that nobody can find.

The process: visit the Sub-Registrar's office with the will, your two witnesses, and identity proof for all three. Fees are nominal — typically a few hundred rupees, varying by state. There is no valuation-based charge, because there is no stamp duty on a will.

What registration does not do: it does not make the will unchallengeable, and it does not freeze it. A later unregistered will validly revokes an earlier registered one — date governs, not registration. Practically, though, if you register the first, register the replacement too; leaving a registered will in the system alongside a private later one invites exactly the litigation you were trying to prevent.

How to Make a Will: What to Put In It

• Declaration and revocation clause. State your name, address, that you are of sound mind and acting freely, and that this revokes all earlier wills and codicils. That last line prevents your own drafts from fighting each other.
• A full asset schedule. Immovable property with survey and registration details; bank accounts; demat holdings; mutual funds; jewellery; insurance; business interests. Vague descriptions produce disputes.
• Named beneficiaries and precise shares. "Equally among my children" is fine. "To my family" is not.
• A residuary clause. The most-skipped and most-useful clause: "everything not otherwise specified goes to X." It catches the asset you bought after signing, and the one you forgot.
• An executor. The person who gathers the estate, settles liabilities and distributes. Name an alternate. If you name nobody, a court appoints an administrator — slower and costlier.
• A guardian for minor children, if applicable.
• Liabilities. Loans do not vanish on death. Say which asset settles which debt.
• Date, signature on every page, attestation clause, two witnesses. Non-negotiable.

Two practical safeguards. If you are elderly or unwell, obtain a doctor's certificate of testamentary capacity dated the same day and annex it — it pre-empts the "unsound mind" challenge. And a short video of the signing, with witnesses present, is cheap insurance. Small changes go in a codicil (Section 2(b)), executed with the same formalities. Substantial changes deserve a fresh will.

Nomination Is Not Succession — the Costliest Misunderstanding

People believe that because they named a nominee on their bank account, insurance policy and demat, their estate is sorted. It is not.

A nominee is a receiver, not an owner. The Supreme Court settled this in Sarbati Devi v. Usha Devi (1984): a nominee under a life policy holds the money for the legal heirs; nomination does not override succession law. The nominee's job is to give the institution a valid discharge — nothing more. The same logic has been applied to company shares.

So nomination decides who collects. A will decides who keeps. If the two point different ways, your family gets to litigate the difference. Keep nominations on your insurance, pension plans, bank accounts and demat aligned with your will — reviewed together, updated together.

Business and IP Succession

If you own a business, your will has a second job. What passes on your death depends on the structure. A proprietorship is you — it ends, and its registrations end with it. A company enjoys perpetual succession: the entity continues untouched, keeping its PAN, its GSTIN and its contracts. What passes to your heirs is your shareholding, by transmission.

That transmission runs through the Articles of Association, which in a private company frequently carry transfer restrictions and pre-emption rights. Read your own Articles before assuming your will controls the outcome. In a public limited company the constraints differ again.

Intellectual property is property too. Trademarks, copyrights and patents pass under a will — but the registry does not update itself. Transmission must be recorded, and where the register is wrong or stale, a rectification procedure may be needed. A brand your heirs cannot prove they own is a brand they cannot defend.

Probate — and the Tax Position

Probate is a court's certification of a will's validity and the executor's authority. It is not required everywhere. Under Section 213 of the Indian Succession Act it is compulsory for wills of Hindus, Buddhists, Sikhs and Jains made within the ordinary original civil jurisdiction of the Bombay, Calcutta and Madras High Courts (Mumbai, Kolkata, Chennai), or relating to immovable property situated there. Outside those jurisdictions it is generally optional — though banks and registrars sometimes ask for probate or a succession certificate anyway, particularly where the estate is large or the family is not unanimous.

On tax, the news is better than most people expect. India has no inheritance tax or estate duty. Estate duty was abolished for deaths on or after 16 March 1985. Property received under a will is expressly outside the scope of Section 56(2)(x), so your heirs pay nothing on receipt.

What they do face is administration:

• A final income tax return for the deceased, covering income up to the date of death, filed by the legal heir after registering as such on the e-filing portal. This gets overlooked constantly — see our ITR guide.
• Income arising after death is taxable in the heirs' hands — or the estate's, pending distribution.
• On a later sale of inherited property, the cost and holding period of the previous owner carry over under Section 49(1). Inheriting does not reset your capital gains clock, and heirs are routinely surprised by the gain that surfaces.

Frequently Asked Questions

Is registration of a will compulsory in India?

No. Section 18(e) of the Registration Act, 1908 makes registration of a will optional. An unregistered will is fully valid if signed by the testator and attested by two witnesses. Registration adds evidentiary strength and safe custody, not validity.

Does a will need stamp paper?

No. A will attracts no stamp duty and requires no stamp paper. A handwritten will on ordinary paper, properly signed and witnessed, is valid. Notarisation is not required either.

Can a beneficiary be a witness to a will?

They should not be. Under Section 67 of the Indian Succession Act, a bequest to an attesting witness or the witness's spouse is void, though the will itself remains valid. Always use two independent witnesses who take nothing under the will.

Is there inheritance tax on property received under a will in India?

No. Estate duty was abolished for deaths on or after 16 March 1985 and India has no inheritance tax. Property received under a will is outside Section 56(2)(x). Heirs may still face capital gains on a later sale, since the previous owner's cost and holding period carry over.

Does a nominee become the owner of the asset?

No. A nominee receives the asset and gives the institution a valid discharge, but holds it for the legal heirs. The Supreme Court confirmed this in Sarbati Devi v. Usha Devi. Succession is decided by your will or by succession law, not by the nomination form.

Can I change or cancel my will?

Yes, at any time while you are alive and of sound mind. Section 62 makes a will revocable. Minor amendments can be made by codicil; substantial changes are better handled with a fresh will containing a clause revoking all earlier ones.

Is probate always necessary?

No. Under Section 213 it is compulsory for wills of Hindus, Buddhists, Sikhs and Jains made within the original jurisdiction of the Bombay, Calcutta and Madras High Courts, or relating to immovable property there. Elsewhere it is generally optional, though institutions may still ask for it.

What happens if I die without a will?

You die intestate and your property devolves under the succession law applicable to you — the Hindu Succession Act, 1956, the Indian Succession Act, 1925, or the relevant personal law. The statute decides who gets what, regardless of your intentions or your family's circumstances.

Conclusion

A last will and testament is not a document about death. It is a document about the people who outlive you, and whether they spend the years after your death grieving or litigating. Indian law asks almost nothing of you: put it in writing, sign it, have two disinterested people witness it. Everything beyond that — registration, a lawyer, probate — is optional strengthening, not a precondition.

Do three things this month. Write the will, keeping beneficiaries out of the witness chairs. Align every nomination — bank, insurance, pension, demat — with what the will says. And tell your executor where the document physically is, because a perfect will nobody can find protects nobody.

Disclaimer: This article is for educational purposes and does not constitute legal advice. EasyTax is a tax and compliance firm, not a law firm. Succession law in India varies by religion, personal law and the nature of the property, and ancestral or coparcenary property carries restrictions not covered here. Provisions are as understood at the time of writing and may change. Please consult a qualified lawyer before drafting or executing a will.