File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Will (Wasiyat) Under Muslim Law

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 law.

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):

  • 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.

Restriction against Bequest to an Heir
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 valid.

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 consent.

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.

Mohammedan Law 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 Will.

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Difference between Sunni and Shia Law of Wills
SL. No. Sunni Law of Will Shia Law of Will
1. 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.
2. Requires the consent of heirs to be given after the death of the legator. Allows consent to be given either before or after the death of the legator.
3. 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.
4. 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.
5. 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.
6. Follows the rule of rateable distribution in case of abatement of legacies. Applies the rule of preferential distribution in case of abatement of legacies.
7. If a legatee dies before the legator, the legacy reverts to the legator. The legacy will lapse only when the legatee dies without leaving an heir or if the legator revokes the Will.
8. Acceptance of the legacy before the testator's death is of no effect. 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,
  • Family Law-II, Usha Jaganath Law Series
  • Concept of Will Under Muslim Law -
  • Will.pdf
  • Mulla, Principles of Mahomedan Law, LexisNexis

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly