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Will under Muslim Law

The law of wills is contained in Part-VI of the Indian Succession Act, 1925. All the provisions of Part-VI do not apply to Hindus, Buddhists, Sikhs and Jains. In Muslim law, Gratuitous transfer of ownership may be made testamentary. Testamentary transfer is called transfer under a will. Will is a gratuitous transfer of ownership but, it takes effect only after the death of the transferor.

Will signifies the last desire of a person regarding the distribution of his properties after his death. Accordingly, in all the systems of law, rules have been made to honour the last desires of a person regarding the devolution of his properties. Devolution of property means transmission of property. In a will too the property passes on to the person in whose favour the will is made. But a will is not governed by the provision of Transfer of Property Act, 1882. Where a person dies after making any will the devolution of his properties after his death is to be governed by his personal law i.e, will by a Muslim law is governed by Muslim law.

A will executed by a Muslim is called wasiyyat. In respect of wills it is significant to note that it actually modifies or sometimes negatives the distribution of properties of a deceased under the law of inheritance. Under a will, the properties of the deceased devolve only upon the person of his choice. It may be objected that a will made by a deceased Muslim may amount modifications in the law of inheritance which is based on the rules laid down in Quran.

A person must be mentally alert when he or she makes and signs a Will. Age or physical condition is not a sign of incompetence. A person should also be free from undue influence, persuasion or force while making the Will. [1]The law only requires that two witnesses, who must not be related to you by blood or marriage or , to watch you sign & date the will and that they know you have said it is your Will. [2]

To prove a Will, it has to be shown that:

  1. The Will is the legal declaration of testators intention
  2. The testator was of sound, disposing mind during execution
  3. The testator executed it of his own free will.

Two essential characteristics of a Will are:

  1. It takes effect after the death of the testator; and
  2. It is revocable during the life time of the Testator
According to Tyabji, will means a legal declaration of the intentions of a Muslim with respect to his property, which he desires to be carried into effect after his death.[3]

According to Baillie, will is a device for conferring a right of property in a specific thing, or in a profit or advantage, in the manner of a gratuity, postponed till after the death of the testator. A wasiyyat can be made orally and no writing is required under law.[4]

When this is the case, the beneficiary is required to prove beyond doubt the intention to make the Will by the testator, [5]and the terms of the Will,[6] and to prove the same with utmost precision.[7]

If the Will is a written one, the writing need not be described as a Will but the intention should be decisive, and it need not be formally signed by the testator, and further it is not required to be attested[8] or registered. All the properties that belong to the testator are transferrable can be disposed of by the help of a Will.

The aggregate of assets and liabilities is known as the estate of the deceased. Except the Wills made by Muslims, it is compulsory for all other religions to make their Wills in writing and that should be duly executed. Registration of a Will is optional but desirable. The will can be registered by testator during his lifetime or by the executor.

Conditions For A Valid Will

Under Muslim law, following essential conditions are necessary for a valid will:

  1. The legator and the legatee must be competent.
  2. Competency of the Legator: Who can make Will?
The person who makes a will is called legator or testator. The legato must have the capacity to make a will and fulfill the following conditions: Muslim, soundness of mind, age of majority, suicide attempt by Legator. The legato must be a muslim at the time of making of the will. Only that will is governed by Muslim personal law in which the legato was a muslim at the time of its execution. If a will has been executed by a muslim who ceases to be a muslim at the time of his death, the will is valid under Muslim law.

At the time of execution of a will, the testator must be of sound mind. A will by an insane person is void.

The testator must also be adult. He must have attained the age of majority at the time of execution of the will. The age of Majority is 15 years, but it is not applicable to the wills in India. The testator must be eighteen or twenty one years, as the case may be, at the time of execution of the will. A will executed by a minor is void.

Under Shia Law, a will made after the testator who was injured by his own actions or tried to commit suicide, such a will is declared as invalid. In Mazhar Hussain v Bodha Bibi[9] it was held that a will of suicide is valid when made in contemplation of taking poison but before poison was actually taken, onus of proving that the will was written afterwards rests on party impugning with.

Competency of the legatee: Who can take under Will?

Any person may be a competent legatee provided he (or she) is in existence at the time of the death of the testator. It is to be noted that devolution of property under a will takes place only after the death of the testator, not from the date of making the will. A muslim can lawfully make a will in favour of any person irrespective of religion, age, sex and the state of mind. A juristic person is also a competent legatee.

A child in its mother's womb is treated as a living person in existence. Therefore, a child in womb may be a competent legatee.

But a will in favour of a child in womb is valid subject to two conditions:
  1. The child must be in existence in mother's womb at the time of testator's death.
  2. The child in mother's womb must be born alive within six months from the date of testator' death

A person who causes the death of the legator, cannot be a competent legatee. If a person in whose favour a will has been made, kills or causes the death of the legato, either intentionally or accidentally, he is disqualified for getting any property under the will. However, under Shia law, if a legatee causes the death of the legato negligently or accidentally, he is not disqualified and the will in his favour is valid.

A bequest may be made to two or more legatees jointly. Where a will is made jointly to several legatees and no specific share of any of them has been mentioned, the property is divided equally among all the legatees. But, where the legator himself has specified the respective shares of the legatee then, each legatee would get the shares allotted to him. Where a will is made in favour of specified class of persons, the class as such is treated as a single legatee and each person gets the property equally.

In Lapse of Legacy under Sunni law If the legatee dies before testator, the legacy lapses and goes back to the testator but under Shia law The legacy lapses only if the legatee dies without heirs otherwise, it goes to legatee's heirs. Under Shia law, in case the beneficiary does not survive the testator, the bequest would pass to the heirs of the beneficiary unless it is revoked by the testator. If the beneficiary dies without leaving any heirs, the bequest ill pass to the heirs of the testator[10] but in Sunni law if the legatee dies before testator, the legacy lapses and goes back to the testator.

There must be free consent.
The will must be executed by a legator and legatee must be necessary. Legator must be free from fraud or undue influence. When a will has been executed by a pardanashin lady, the legatee must prove of his ownself, that there was no undue influence and that she had executed the will with her free consent exercising an independent in the matter.

The consent by the legatee may be either express or implied. If the legatee does not give his consent for taking the property given to him, i.e. if he declines to become the owner of the bequeathed property, his title to the property is not complete.

Formalities must be completed.
The only essential requirement is that there should be a manifestation of the intention of testator that after his death, he wants to confer the ownership upon the legatee. Once this intention is established, the form of the will is immaterial. A will may be made either orally or in writing and if in writing it should be attested and registered. In case of a written will, there should be two witnesses to the declaration of the will. If the testator fails to mention the quantity or amount of bequeathed property, regard may be given to the number or quantity owned by the testator at the time of death.

The property must be bequeath able property

Any kind of property, movable, immovable, corporeal or incorporeal, may be the subject matter of will.

A testator may make a will of any property subject to two conditions:

  1. the property is owned by the testator at the time of his death, and
  2. the property is transferable. The property which is bequeathed under a will may or may not exist at the time of making will but, it must exist and must be in the ownership of the testator at the time of his death.

The legator must possess the testamentary right.
Under Muslim law, the testamentary right, i.e. the right to transfer the properties through will, is restricted in two ways:
  1. Firstly, there is a restrictions upon the quantity of property bequeathed.
  2. Secondly, in respect of the person(legatee) to whom the property is given.
When a person dies, first of all his funeral expenses and the debts, if any, are satisfied out of the property left by him and the property which remains after payment of all debts incurred by a deceased person it is called bequeathable property if the deceased has made any will. Where the testator is a Muslim, he is authorized to make will only of one-third of the bequeathable property i.e. one-third of what remains after payment of is funeral expenses and debts, if any.

Accordingly, the testamentary right of a Muslim under the following two heads:

  1. Bequest to Stranger (Non-heir)
    In Sunni law For a bequest of more than 1/3 to a non-heir, the consent of heir must be obtained after the death of testator but under Shia law Heir's consent may be obtained before or after death In both the sects consent of the heir is required before bequesting it to a non-heir, but the only difference is in sunni law the consent of the heir can be obtained only after the death of the testator and in shia law the consent of the heir can be obtained before or after the death of the testator.

  2. Bequest to an Heir
    In Sunni law Bequest to an heir without consent of other heirs is invalid. Bequest to an heir is invalid unless consent of heirs is obtained after death of testator but under shia law Bequest up to 1/3 [11]of the property is valid even without consent. Muslims can bequest one-third of their estate without consent of heirs. Consent of heirs is required if bequest exceeds one third of estate. Mohammedan law does not allow him to show any undue preference towards any particular heirs and a bequest to some of his heirs without the consent of the other heirs will be altogether invalid.[12]

    The Court in the case of Damodar Kashinath Rasane v. Shahajsdibi And Ors[13] observed that the Sunni Schools agrees in holding that a bequest in favour of an heir is invalid but, according to the Shia law it would seem that a testator can leave a legacy to one of his heirs so long as that legacy does not exceed one-third of his estate, and that such a legacy would be valid without the consent of the other heirs and if the legacy exceeds one-third of the estate, it will not be valid to any extent unless the consent of all the heirs, given after and not before the death of the testators, had been obtained.

When Does A Muslim Will Become Effective

A Muslim will becomes effective and the title to the property bequeathed is completed only with the legatee's acceptance express or implied, after the death of the testator. If a legatee accepts a bequest after the death of the testator it is valid even if he may have rejected it during his life time. If however the legate survives the testator and dies without assenting to the Will the assent is presumed. Acceptance of Will is presumed in case of infant or child in the womb unless it would cause injury to the legatee.

When A Muslim Will Can Be Cancelled

Muslim law decrees that a person can cancel the will at his convenience without giving any reasons, anytime before his death.

Which Muslim Will Is Valid

Another way of cancelling the will is to bequeath the property to someone other than the heir who was mentioned in the first will. The last will that an individual makes becomes his final will, and will be taken into account at the time of death.

Abatement Of Legacies

Abatement means, 'to deduct' or 'to make less'. IF there is only one legatee who has to get more than the legal-third and, the testator's heirs do not give their consent for the bequest in excess, then there would be no difficulty and the legatee would get only one-third property even though the will is for more.

Under Sunni law, the distribution is rateable whereas under Shia laws the distribution is preferential.

Rate able Abatement
Where a bequest of more than one-third of property is made to two or more persons and the heirs do not give their consent, the shares are reduced proportionately to bring it down to one-third, or in other words, the bequest abates rateably.

The above rule applies in Sunni law only:

  1. Bequest for faraiz, that is, purposes expressly ordained in the Koran viz. hajj, zakat and expiation for prayers missed by a Muslim.
  2. Bequest for waji-bait, that is, purposes not expressly ordained in the Koran, but which are proper such as charity given for breaking rozas.
  3. Bequest for nawafali, that is, purposes-deemed pious by the testator, viz. bequest for constructing a mosque, inn for travellers or bequest to poor. The bequests of the first category take precedence over bequests of the second and the third category and bequests of the second category take precedence over those of the third.

Chronological Priority
According to Shia law, if several bequests are made through a Will, priority would be determined by the order in which they are mentioned or by the point of time. Thus, legacies take effect in order of preference.
  1. If a bequest is made partly for performance of incumbent and partly for discretionary duties and one-third is not sufficient for both, then if the heirs refuse their consent, the incumbent duties must be discharged from the general mass of the estate and the others from one-third of the remaining property in the order in which they are mentioned by the testator.

  2. If a second Will clearly shows the intention of the testator to revoke the first Will, the second bequest shall alone take effect. Such an intention shall be presumed in the case of bequest of exactly one-third to two different persons.

  3. If no such intention appears, bequests will be entitled to priority in the order in which they were made.

Importance of Islamic Will

The importance of Islamic will is clear from the two following hadith:

  1. It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it.
  2. A man may good deed for 70 years but if he acts unjustly when he leaves his testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If, (on the other hand) a man acts wickedly for 70 years, but is just in his last will and testament, the goodness of his deeds will be sealed upon him, and he will enter the garden.

Comparison Between Hindu And Muslim Law On The Basis Of Law Of Will

Hindu Laws Muslim Laws
  1. Under the Hindu Law, practice of polygamy is abolished.
  2. Adoption is there under the hindu law.
  3. Hindu law is a codified law.
  4. Under the Hindu law, there is concept of separate and ancestral property.
  5. Hindu Law is governed by the Hindu Succession Act, 1956.
  1. Under the Muslim Law, practice of polygamy is present under the law.
  2. Adoption is not there under the muslim law.
  3. Muslim law is not a codified law.
  4. Under the Muslim Law, there is concept of only joint and single property.
  5. Muslim law is governed by the Muslim Shariat Law Act of 1937.

Executor of a Muslim Will:

Under the strict Muhammadan law, an executor was simply an administrator to complete the intentions of the testator. He was a trustee named by the testator to protect and deal with his property and kids after his demise. He was not the lawful proprietor of the property of the deceased and the property did not vest in him.

He had no energy to offer or contract or estrange the property in some other way. Now, under the provisions of Section 211 of the Indian Succession Act, 1925. an executor of a Muslim's will is his legal representative for all reasons and all the property of the deceased vests in him; in this manner, he has the ability to dispose of the property at the appointed time.

A Muslim will must be constructed primarily in accordance with the rules laid down in the Mohammadan law, bearing in mind the social conditions that prevail, the language employed and the surrounding circumstances. A will speaks as in modern law, from the death of the testator. The court should as far as possible give effect to the intentions of the testator when there is ambiguity in the will. The heirs may also be asked to interpret it.

The heirs may give consent either before or after the death of the testator. A bequest by Will, in excess of one- third will not be valid without the heirs consenting to such a bequest. In this matter we have put light on the basic difference between Shia law and Sunni law in the concept of wills. Coming forth upon the views we have concluded that laws support the laws of wills in proper manner, which presents a clear view of the person who makes the will, on which way the will would provide service. Therefore, a will in Muslim law is a divine disposition of property.

  1. The legal dictionary, by Farlex,
  2. Seatleu law education,
  3. Tyabji: Muslim Law, Ed. IV, p.754
  4. Kulsum Bibi v. Shiam Sunder, AIR 1936 ALL 600
  5. Izhar Fatima v. Ansar Bibi, AIR 1939 ALL 348
  6. Mahabir v. Mustafa, AIR 1937 P.C. 1974
  7. Venkatrao v. Nandev, AIR 1931 P.C. 283
  8. Abdul Hamid v. Abdul Ghani, AIR 1934 p.165
  9. 1898 21 ALL 91(P.C)
  10. Husani Begum v. Muhammad Mehdi, AIR 1927 ALL 340
  11. A third of the estate of the testator as is left after the payment of the funeral expenses, debts of the testator and other charges.
  12. Subhanullah v. Mohammad Junaid, 1980 All. C.J. 482 at p.484
  13. AIR 1989 Bom 1

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