A Will is a declaration by the owner about how his property will be distributed
after his death. One can make his Will either orally or in writing. A Will takes
effect upon the death of the testator and may be revoked at any time before the
testator's death. The Will need not be explicit. A subsequent Will implicitly
revokes the previous will.
Any Muslim man or woman who has reached the age of 18 and is of sound mind can
execute a Will. According to Shia law, a person who has taken poison to commit
suicide cannot make a Will.
A Muslim's Will does not have to be in writing. If it is in writing, it does not
need to be signed, and if it is in writing and signed, it does not need to be
authenticated or attested.
A Will made only by a Muslim is considered an authentic Will under Islamic law.
If the trustee is a Muslim at the time the Will is executed, then only the Will
is governed by Muslim Personal Law.
In case a Muslim has married under the Special Marriage Act, 1954, the Will made
by such a Muslim is governed by the provisions of the Indian Succession Act,
1925 and not by the Muslim Personal Law.
There may be a situation where the legatee is a Muslim when he executed the
Will, but afterwards renounced Islam and thus was recognized as a non-Muslim at
the time of death. A Will made by such a Muslim is considered valid under Muslim
The Importance Of Islamic Will Is Evident From The Following Two Hadiths:
Sahih al-Bukhari: "It is the duty of a Muslim who is to bequeath something, not
to let two nights pass without making a Will about it.
Ahmad and Ibn Majah: "A man may do good deeds for seventy years, but if he acts
unjustly in abandoning his last Will, the malice of his deed will be sealed upon
him and he will enter the fire. On the other hand, a person acts impiously for
seventy years, but he is righteous in his last Will, the goodness of his deed
shall be sealed upon him, and he shall enter into the garden."
It is not necessary that the executor of the Will of a Mohammedan be a
Mohammedan. A Mohammedan may appoint a Christian, a Hindu, or any other
non-Mohammedan as his executor. The powers and duties of the executors of a
Mohammedan will be determined by the provisions of the Indian Succession Act,
1925, in so far as they apply to Mohammedans.
A Mohammedan Will may, after proper proof, be admitted in evidence, even if it
was not obtained by probate.
Subject of Bequest:
- A Will can be made of any transferable property that exists at the time of the testator's death. It does not have to exist at the date of the Will.
- A Will in the Future is invalid and a Contingent Will is also invalid. The Alternate Will was considered valid.
Essentials of a Valid Will:
- A Will should be lawfully made and should exist at the time of the legator's death. According to Muslim Law, a Will can be made orally or by clear gestures and they are valid.
- However, such Wills are rare and they should prove the following:
- The legator's intention to make the Will.
- Term of the Will (Conditions).
- Precision of the Will.
- A written Will need not be formal but fulfill the following conditions:
- The legator's clear intentions should be proved.
- His signature is not essential.
- If the Will is signed, it need not be attested.
The Wills in Muslim Law resemble 'Privileged Will' of the Indian Succession Act.:
- A Will is revocable by the testator, and thus a Will that is not revoked after being made is enforceable. Revocation can only be made by the testator during his lifetime, not by his heirs or after his death.
- Revocation of the Will by the testator may be explicit or implied by the testator's actions. A subsequent sale or gift of the bequeathed property will result in the revocation of the Will.
- If a legator bequeaths a certain property to a particular person and later bequeaths to another person, then the latter amounts to revocation of the former Will:
- Under the Hanafi Law, if the legatee dies before the legator, then the Will lapses. In Hanafi law, the following rules apply in such a case:
- After the legatee's death, the legator can revoke the Will.
- If the legator does not revoke the Will, it will pass on to the legatee's heirs.
- If the legatee has no heir, the Will shall lapse.
Validity of Wills (Regarding the Legators):
- The legator must be of sound mind and should not be insane.
- The legator must not be a minor. A Will cannot be made by a guardian on behalf of a minor or an insane person. Such a Will is void.
- A Will made by a person who has attempted suicide is void.
Validity of Wills (Regarding the Legatee):
Restriction against Bequest to an Heir
- If the legatee causes death of the testator, then the Will becomes void and ineffective.
- A Will can be made in favor of an individual, an institution, non-Muslim, a minor, or an insane person.
- The legatee must be in existence at the time the bequest is made. Regarding the child in the womb, a Will in its favor is valid if it takes birth in less than six months from the date of the bequest.
- The legatee (if he wishes) may disclaim after it becomes operative.
- A Will in favor of any person who can be an heir of the legator under the law of intestate succession is not allowed. But such a Will is not completely void. It is enforceable if the other heirs consent to such a Will.
Under the Mohammedan Law of Wills, a testator cannot bequeath his property to an
heir, and thus an heir cannot become a legatee. The principle of this
restriction is that if one heir gets property, other heirs would be prejudiced
to that extent. But if the other heirs consent for it, such bequest may be
Under the Hanafi Law, the testator can bequeath his property to an heir with the
consent of the other heirs, to be obtained after the death of the testator. The
consent of the heirs may be express or implied but silence is not considered as
In Shia Law, the testator can bequeath to a legatee with the consent of other
heirs even during the life time of the testator. If the legator bequeaths his
property to an heir and a son's heir, the latter will get the benefit according
to the Will, irrespective of other heir's consent. In Ithna Ashari law, such a
Will in favour of an heir is invalid.
Overview of Mohammedan Law of Wills
Mohammedan Law of Wills is at variance with the English Law, on which the Indian
Succession Act has been based. The Indian Succession Act, 1925 does not apply to
Mohammedans (Muslims), excepting the provisions relating to probate and letters
of administration etc. A Muslim can make an oral Will and no writing is required
under Mohammedan Law. The legatee is required to prove beyond doubt the
intention to make a Will by the testator and the terms of the Will and to
further prove the same with utmost precision.
If the Will is in writing, it does not need to be marked as a Will, but the
intention should be decisive and it does not need to be formally signed by the
testator, nor does it need to be verified or registered. However, for a Will to
be valid, it must be made with free consent.
Mohammedan Law limits the power of bequests to 1/3 of the net assets. 2/3 must
in any case be divided according to the rules of intestacy. Will is prominently
referred to as Wasiyat in Mohammedan Law. Simply put, a Muslim man cannot take
more than 1/3 of his property, i.e., 2/3 of the property must be divided among
family members in shares as stipulated in the Sharia Law, 1937.
gives male heirs, sons, a double share of daughter. There is a provision that
the heirs of a Muslim testator can agree to a legacy exceeding 1/3 of the
testator's property. A Muslim is fully competent to change his Will during his
life time or cancel any legacy. A Will made by a Muslim testator can be
considered invalid if the testator proves to be of unsound mind after making the
Will and remains so until his death.
Bequeathable One Third Rule
Mohammedans cannot give any more than 1/3 of their wealth once they have paid
for burial expenses and debts in accordance with this rule.
Hence, a Muslim shall not make more than one-third of his property into a Will.
According to the law, two thirds of the property shall definitely pass to the
heirs of the testator.
Suppose a Muslim died leaving property worth Rs. 20,000/-. His funeral charges
are Rs. 4,400/- and debts are Rs. 3,600/-. The balance is Rs. 12,000/- and the
one third of it is Rs. 4,000/-. Thus, only Rs. 4,000 can be the subject of the
Exception to the 1/3rd Rule:
- If an heir whose rights are infringed consent, more than one-third can be bequeathed.
- Under the Shia Law, the rule does not concern to a Will by which the legator provided that one of his religious obligations should be carried out, which he could not perform before his death.
- In the Hanafi law, the rule of bequeathable one-third does not apply when a legator leaves only the spouse whose share is less than two-thirds of the estate, but no other spouse.
- This rule does not apply where the testator has no heir, in that case, the government is no heir to an heirless person.
Regarding the consent of the heirs if the bequeathed property exceeds one third of the estate, there is no difference between the Sunni and Shia Schools.
Rules regarding Consent of the Heirs:
Difference between Sunni and Shia Law of Wills
- Period of consent: According to Sunni law, consent must be given after the death of the testators. According to Shia law, consent can be given before or after the death of the testator.
- Method of consent: Consent may be express or implied. Confirmation of the Will by the heir and consent of the legatee taking over the property is sufficient consent. Likewise, if the heirs did not contest the Will for three-quarters of a century, and the legatees took allowances month after month, it is considered as consent.
- Consent of some heirs: If only some of the heirs give their consent, the bequest exceeding one third is payable from the share of the consenting heir.
- Consent of insolvent heirs: Consent of insolvent heirs has become effective in validating the legacy. If consent has already been granted, it cannot be subsequently revoked.
|Sunni Law of Will
|Shia Law of Will
|Deems a bequest to an heir as invalid even up to one-third
of the property without the consent of other heirs.
|Considers a bequest valid up to one-third of the property,
but for more than one-third, consent from other heirs is necessary.
|Requires the consent of heirs to be given after the death of
|Allows consent to be given either before or after the death
of the legator.
|If the legatee commits murder or causes the death of the
legator, they cannot inherit the property under a Will.
|If the death is intentional, the legatee cannot inherit, but
if accidental or negligent, inheritance is allowed.
|Considers a Will valid if the legator commits suicide before
or after the execution of the Will.
|Validates a Will only if the legator commits suicide after
executing the Will.
|Validates a bequest for an unborn child if born within 6
months of making the Will.
|Validates a bequest for an unborn child if born within 10
months of making the Will.
|Follows the rule of rateable distribution in case of
abatement of legacies.
|Applies the rule of preferential distribution in case of
abatement of legacies.
|If a legatee dies before the legator, the legacy reverts to
|The legacy will lapse only when the legatee dies without
leaving an heir or if the legator revokes the Will.
|Acceptance of the legacy before the testator's death is of
|Accepting a legacy during the testator's lifetime is legal.
Among Muslims, 'Will' is a practice where one leaves some assets for persons who
may not be close relations or even direct successors. Such a flexibility allows
those individuals to participate in donations that they believe or they love.
The process of making a Will gives people an opportunity to ensure that they get
peace in their minds that whatever they want to happen with the inheritance is
already written down. It becomes especially crucial for intricate families and
where one wants to follow certain traditional beliefs.
Islam stresses the necessity of carrying out duties such as those relating to
family and wealth. Muslims see making a Will as fulfilling of their religious
obligations, whereby all property is distributed fairly among heirs while taking
care of dependents.
The importance of Wills in Muslim law is acknowledged, but one should consult
Muslim scholars or legal advisors whose knowledge on Islam is sound to ensure
their last testaments or Will conforms with Islamic doctrine and to become valid
in compliance with relevant legislation.
- Islamic Law Will, https://blog.ipleaders.in/islamic-law-will/
- Family Law-II, Usha Jaganath Law Series
- Concept of Will Under Muslim Law - https://www.legalserviceindia.com/legal/article-251-concept-of-will-under-muslim-law.html
- Will.pdf https://lc2.du.ac.in/DATA/Will.pdf
- Mulla, Principles of Mahomedan Law, LexisNexis