Understanding “Wasiyat”: Key Aspects of Wills in Islamic Law

Understanding Wills

A Will, also called a testament, is a legal document. In it, a person states what should happen to their property after they die. Legal expert Tyabji defines a Will as giving someone the right to property, money, or a benefit, but only after the person who wrote the Will (the testator) has died.

A main point about a Will is that it only becomes valid after the person who wrote it dies. Also, the person can change or cancel it any time before they die. Unlike selling property or giving it away as a gift, the person who made the Will keeps complete control over their property during their lifetime.

The person who will receive property from the Will (called the beneficiary) cannot stop the person who wrote the Will from using, selling, or giving away their property. If the beneficiary tries to interfere, the Will can be canceled.

Illustration

Fatima, an old woman, knew that two-thirds of her money and property would go to her children. She decided to set aside one-third of her belongings as a special gift, called a Wasiyat. She gave this part of her money to a local orphanage she had supported for many years. She asked that the money be used to help educate the children there.

Her gift was written down and witnessed, making it official. After she died, her children, who were her legal heirs, agreed to her wishes. They accepted the gift because it was not more than one-third of her total property, and it didn’t take away from their own rightful shares. This made Fatima’s special gift valid under Muslim law, and it was a very kind act of charity.

Wasiyat vs. Standard Will: What’s the Difference?

Wasiyat (Islamic Will):

• This type of Will follows Islamic (Sharia) law, with clear rules based on the Qur’an and Hadith (Islamic holy books).
• You can only give away up to one-third of your belongings freely. The other two-thirds must go to specific family members like your children, spouse, and parents.
• You usually cannot give a share from the ‘free’ one-third to people who are already set to inherit a fixed portion of your estate, unless all other fixed heirs agree.
• It can be valid even if it’s spoken, not written, as long as you clearly state your wishes and there are witnesses.
• It focuses on doing your religious duty and gaining spiritual rewards, often by giving money to charity or religious causes.

Standard Will (Normal/Secular Will):

• This Will follows the laws of your country or state, letting the person making the Will decide almost everything.
• You can freely give all your belongings to anyone you choose, though some laws might protect close family members who depend on you (like young children).
• You can choose to leave out people who would normally inherit, unless they successfully challenge the Will in court.
• It must be written down, signed by you, and witnessed by others to be legally valid.
• It focuses on what you personally want to happen, how to manage your money and property, and following legal rules.

Object and Significance of Wills

The main purpose of a Will, according to the Prophet’s teachings, is to support family members and relatives who might not receive enough through standard inheritance laws. However, the Prophet also stated that Wills should not harm legal heirs. Giving one heir more money or property through a Will is seen as unfair to other heirs. It reduces their share and could cause family disputes.

Because of this, Muslim law allows someone to give away all their property during their lifetime (this is called a “lifetime gift”). But when it comes to Wills, they can only change how up to one-third of the property is distributed, so they don’t interfere much with standard inheritance laws.

Still, a Will lets the person making it (the “testator”) adjust the standard inheritance rules a little. It allows relatives who wouldn’t normally inherit to receive a share of the property. It also provides a way to reward people outside the family who have helped them.

Formality of a Will

Muslim Wills are generally very simple to make. They don’t require any special forms or procedures. A Will doesn’t even need to be written down to be valid. What matters most is that the wishes of the person making the Will (the testator) are clearly understood.

When a Muslim Will is written, it’s called a Wasiyatnama. Even if it’s written, it doesn’t need a signature, witnesses, or official registration. Simple notes on paper or even a letter can be a legal Will, as long as they clearly state how the person wants their property divided after they die.

For a spoken Will, the testator’s intentions must also be very clear. However, proving a spoken Will is much harder than proving a written one.

Requisites of a Valid Will

To be a valid Will under Muslim law, it must meet these requirements:

• The person making the Will (the testator) must be legally capable of doing so.
• The person who will receive the inheritance (the legatee) must be legally able to accept it.
• The item or property being left in the Will must be something that can legally be given.
• The amount or type of gifts made in the Will must follow the specific limits set by Muslim law.

Testator and Their Competence

Any Muslim adult who is mentally sound can create a Will. In India, people generally become adults at 18, according to the Indian Majority Act, 1875. However, if a court (Courts of Wards) manages their affairs, they become an adult at 21. So, the person making the Will must be either 18 or 21 years old, as required, when they sign the Will.

The person making a Will must be mentally sound when they create it. Under Muslim law, this means they must have a “perfectly disposing mind.” They need to fully understand what they are doing and the legal effects of their choices, not just at the moment they write the Will, but consistently thereafter. A Will made by someone expecting to die soon is still valid. However, if a Shia Muslim makes a Will after trying to commit suicide, that Will is not valid.

A minor cannot make a valid Will, so any Will they make is automatically invalid. But, if a minor made a Will, it can become valid later if they approve it once they become an adult.

A Will is not valid if it was made because of unfair pressure, force, or trickery. Courts are very cautious when dealing with Wills made by women who observe strict seclusion (often called “pardanashin ladies”). Therefore, a Will must always be made freely and willingly by the person creating it.

The person making the Will must be Muslim at the time they create or sign it. A Will only becomes active after the person who made it dies. Before their death, it’s just a statement that allows someone to receive property later. If a Muslim makes a Will and then stops being Muslim before they die, the Will is still valid under Muslim law. Also, the Will follows the rules of the particular branch of Muslim law (e.g., Shia or Sunni) that the person belonged to when they made the Will. For example, if a person was a Shia Muslim when they wrote their Will, then only Shia laws about Wills will apply.

Legatee and Their Competence

Anyone who can own property can inherit from a Will. This includes people of any religion (Muslims or non-Muslims), people with mental disabilities, children, and even unborn babies. This means a person’s gender, age, beliefs, or religion does not stop them from receiving something. However, the person (even an unborn baby) must already exist when the Will is made. So, you cannot leave something to someone who hasn’t been conceived yet.

Wills can also leave gifts to organizations or institutions. However, these groups cannot promote religions other than Islam, such as a Hindu temple or a Christian church. Gifts for religious or charity purposes are usually allowed. But you cannot leave a gift for something clearly against Islamic rules, like an idol in a Hindu temple, because worshipping idols goes against Islam.

No one can be forced to accept a gift from a Will. The gift only truly belongs to the person receiving it if they agree to accept it, usually after the person who made the Will has died. The person always has the right to refuse the gift. Also, if someone caused the death of the person who made the Will, they cannot receive anything from it. This rule exists because a Will only becomes valid after the person dies. It stops greedy or impatient people from harming the Will-maker just to get their property quickly. However, it doesn’t matter if the person receiving the gift knew they were named in the Will or not.

Joint Legatees

A gift from a Will can be left to several people together. If the Will doesn’t state how much each person should receive, the gift will be shared equally among them. But, if the person who made the Will did specify individual amounts, then each person gets their exact share.

What Can You Give in a Will, and How Must It Be Given?

What Property Can You Give Away in a Will?

For property to be left in a Will, these things must be true:

• The person writing the Will must own the property.
• The property must be something that can legally be given to someone else.
• The property you want to give away must exist when you die, even if it didn’t exist when you first wrote your Will.
• You can leave any type of property, whether it’s something you can move (like a car), something fixed (like land or a house), or even something non-physical (like a right or a share in a business).

For a Gift in a Will to be Valid:

• The gift must be final and have no conditions attached. For example, you can’t say someone can never sell what you’ve given them. If you try to add such a rule, that rule will simply be ignored, and the person will receive the gift completely, with no strings attached.
• Gifts that are only meant to happen in the distant future, or gifts that depend on an uncertain event, usually aren’t valid.
• However, you can offer an alternative. For example, your Will can state: “This goes to my son. If he’s not alive, it goes to his son. If neither is alive, then it goes to a charity.” This kind of backup plan is perfectly fine.

Special Rules for “Life Estates” (Giving Property for Someone’s Lifetime):

• Under Sunni law: You cannot give someone property just to use for their lifetime and then set it to go to someone else after they die. If you try this, the first person will simply receive the property fully and completely.
• Under Shia law: You can give property for someone to use during their lifetime, and then specify that it will fully belong to another person after the first person passes away. This is allowed.

A Muslim’s Will – Limits on What Can Be Given

Muslims do not have unlimited power to give away their property through a Will. There are two main limits on a Muslim’s Will: who receives the property and how much of it can be given. These rules are in place to protect the interests of the person’s heirs (family who inherit).

Limit on Amount (The Bequeathable One-Third)

• A Muslim can only give away a maximum of one-third (1/3) of their total property through a Will.
• This ‘net’ amount is calculated after paying for funeral costs and any debts.
• If the Will gives away more than one-third, all other heirs must agree to it. This applies to both Sunni and Shia Muslims.
• You cannot give all your property to just one heir, completely excluding others; such a Will would be invalid.
• If heirs don’t agree: Only the one-third portion is valid. The remaining two-thirds will be distributed according to Islamic inheritance laws.

Limit on Who Can Receive Property

If the Recipient is an Heir:

• Sunni law: Other heirs must agree, even within the one-third limit.
• Shia law: No consent is needed from other heirs.

If the Recipient is Not an Heir (a stranger):

• In both Sunni and Shia law, no consent from heirs is needed, as long as it’s within the one-third limit.

Exceptions to the One-Third Rule

• No Heirs: If a person has no heirs, they can will away all their property. The government is not considered an heir.
• Charitable Gifts: Still limited to one-third of the property under both Sunni and Shia law.
• Marriage Under Special Act: If a Muslim marries under the Special Marriage Act, 1954, their Will is governed by the Indian Succession Act, 1925. The one-third limit does not apply.

Consent from Heirs

Who Must Consent?

• Only the actual heirs at the time of the person’s death can give consent.
• Heir status is checked at the time of death, not when the Will was made.

When Consent Must Be Given

• Sunni Law: Consent must be given after the person’s death.
• Shia Law: Consent can be given before or after the person’s death.

How Consent Is Shown

• Consent must be clear, either:
  • Express: Directly stated
  • Implied: Shown through clear actions, e.g., signing the Will or allowing possession of property
• Silence does not count as consent.

Other Rules About Consent

• Partial Consent: If only some heirs agree, the extra portion comes from their shares.
• Insolvent Heirs: A bankrupt heir’s consent is still valid.
• Finality of Consent: Once given, consent cannot be taken back. An heir cannot give consent if they previously refused.

Bequest to Heirs and Non-Heirs

When someone leaves a gift in their Will to both a legal inheritor (like a family member) and someone who isn’t a legal inheritor (like a friend or charity) through the same gift, and the legal inheritors haven’t agreed to it, the entire gift isn’t completely cancelled.

Instead, the part of the gift meant for the non-inheritor will still be valid. The main idea behind this rule is to make sure that as much of the Will’s instructions as possible are followed.

For example, if a Will gives all of a person’s property jointly to a family member who inherits and someone who doesn’t, but the family members don’t approve of this specific gift, then the non-inheritor will still receive one-third of the property. The remaining two-thirds will go to the legal inheritors as their rightful share.

Revocation of Will

Under Muslim law, a person who makes a Will has complete freedom to cancel it. They can do this anytime during their life, either directly (by saying so) or indirectly (by their actions).

An implied cancellation happens when the Will-maker sells, gives away, or changes the property mentioned in the Will. An example is building a house on land that was previously willed to someone.

For instance, if a person wills land to a friend but then a year later gifts that same land to their daughter, the original gift to the friend is automatically cancelled.

If a Will-maker makes a Will and then later makes a second Will leaving the same property to a different person, the gift in the first Will is automatically cancelled. However, if the same Will mentions giving the same property to two different people, it doesn’t cancel the first gift. Instead, the property will be divided equally between those two people.

You don’t need to make a new Will to cancel an old one. A Will can be cancelled by simply stating clearly that you want to cancel it, or by signing a formal legal document specifically for its cancellation.

Death of Legatee Before Operation of Will (Lapse of Legacy)

Under Sunni law, if someone named in a Will (the beneficiary) dies before the Will takes effect, the gift they were supposed to receive is cancelled. The property then stays with the person who made the Will. When that person dies, the property goes to their own heirs, unless they made other arrangements for it.

In contrast, under Shia law, a gift in a Will is only cancelled in two situations: if the beneficiary dies without any heirs, or if the person who made the Will specifically cancels the Will after the beneficiary’s death. However, if the person who made the Will doesn’t cancel it after the beneficiary dies, then the gift will go to the beneficiary’s own heirs when the Will takes effect.

Key Differences Between Sunni and Shia Law Regarding Wills

Feature	Sunni Law	Shia Law
Bequest to child in womb	Valid if born within 6 months.	Valid even if born within the longest period of gestation (10 months).
Abatement of legacy	Rateable abatement applies.	Rule of chronological priority applies.
Heir’s consent	Must be given after the death of the testator.	May be given before or after the death of the testator.
Acceptance of legacy	Acceptance before the testator’s death is of no effect.	Acceptance during the testator’s lifetime is lawful.

Abatement of Legacies

“Rateable Abatement” (Sunni Law)

If someone leaves more than one-third of their property in their Will to two or more people, and their family (heirs) does not agree to this larger amount, then:

• The shares each person was meant to receive will be proportionally reduced.
• This ensures that the total amount given away in the Will does not go over one-third of the entire property.

In short, the inheritance is cut back fairly and proportionally for everyone involved. Please note: This specific rule only applies in Sunni Islamic law.

Chronological Priority (Shia Law)

Under Shia law, if a Will lists several gifts, they are given out in the order they appear. The person mentioned first gets their gift first. Then, if money is left, the second person gets theirs, and so on.

However, there’s a limit: a Will can only give away up to one-third of the total property. Once this one-third limit is reached, no more gifts are given. This means anyone mentioned later in the Will might not receive anything.

So, someone receiving a gift from a Will under Shia law might get their full amount, only part of it, or nothing at all.

Conclusion

In Muslim law, a ‘Will’ (called Wasiyat) is an important way to transfer property after someone dies. You can change or cancel a Wasiyat, and the person making it keeps full control of their assets during their lifetime. While a Wasiyat lets you name beneficiaries who are not your immediate family, you can only give away a maximum of one-third (1/3) of your total property this way.

This limit is crucial because it protects the rights of your legal heirs. It balances your ability to make a Will with the established rules of Islamic inheritance. A Wasiyat (Islamic Will) mainly lets you give away some property differently from standard inheritance rules. You must still be fair to your family and follow Islamic principles. While it’s simple to create, Sunni and Shia teachings have some differences, for example, regarding heir consent or limiting what can be given.