CONCEPT OF WILL AND WASIYAT UNDER MUSLIM LAW
In both Islamic and Hindu law, there are several ways to dispose of property. A Muslim may dispose of his property in accordance with Islamic law by gift, by establishing a wakf, or by using his testamentary rights, or by forming a Will. Under Islamic law, the idea of a will is a compromise between two opposing inclinations. One, according to the prophet, it is imperative that a person’s estate be divided among his heirs after his death. This rule is regarded as divine law, and it is impermissible for anybody to interfere with it. On the other hand, it is every Muslim’s moral obligation to make suitable plans for his or her possessions after passing away.
According to the definition of a will, it is “an instrument by which a person makes disposition of his property to take effect after his death and which is, by its very nature, ambulatory and reversible during his life.” In other words, wasiyat is the term used in Islamic jurisprudence to describe a Muslim’s will.
In accordance with Section 2(h) of the Indian Succession Act, 1925, “Will is the legal statement of a testator with respect to his property which he intends to be taken into effect after his death.”
OBJECTIVE OF WILL
The object of will according to the Prophet is to provide for the maintenance of the members of family and other relatives where they cannot be properly provided by the law of inheritance. A tradition from the Prophet lays down that it is ethically incumbent upon a Muslim to make arrangement for the distribution of his property after his death and that a Muslim having property should not sleep even for two nights unless he has made a written will.
EXTENT OF WILL
The validity of a Will is governed by a stringent regulation in Islam. This law states that a Muslim may only leave a bequest that is equal to up to one-third of his whole property in favour of anybody. No matter who is favored by the Will, the legal heirs must agree if it is formed if more than one-third of the property is involved.
REQUISITES OR ESSENTIALS OF A VALID WILL
The essential requisite of a valid Will, under Mohammedan Law are as follows:
(1)- To make a will, the testator must be of sound mind.
(2) The legatee must be able to accept the gift or inheritance.
(3)- The subject of bequest must be valid one.
(4)- The bequest must be within the limits imposed on the testamentary power of a Muslim.
TESTATOR AND HIS COMPETENCE
The first prerequisite for a will to be considered legitimate is the legator’s competency. If a legator possesses the above-mentioned qualities, he is deemed competent to make a will.
- He must be a Muslim
Islamic law exclusively accepts wills created by Muslims as legitimate testaments. If a testator is a Muslim at the time the will is executed, then just the will is subject to Muslim personal law.
When a Muslim marries under the Special Marriage Act of 1954, the Muslim’s will be governed by the Indian Succession Act’s provisions rather than Muslim personal law.
It is possible that the legator of the Will was a Muslim when he executed the Will but later left Islam, making him a non-Muslim at the time of his demise. Such a Muslim’s will be regarded as legal in accordance with Islamic law.
- Soundness of Mind
The legator must be mentally sound when the Will is being made. According to Muslim law, the executor of a will must have a faultless “disposing mind” at the time of execution. To put it another way, a legator must be capable of understanding his actions and the legal repercussions of what he is doing not only for the specific time period while the Will is being prepared but also when it is being carried out until his death.
A bequest made by a person of unsound mind cannot be deemed valid, if he becomes a sound mind subsequently. In the converse case, a bequest made by a person, while of sound mind, becomes invalid., if the testator is permanently disabled by unsoundness of mind.
A Will made by an insane during his lucid interval will remain valid only if the insanity does not last for more than a period of 6 months. An insane person cannot ratify the Will after reattaining his sanity.
- Age of Majority
According to Islamic law, a person’s minor status ends at the age of 15 years old. However, since the Indian Majority Act and not personal laws determine the age of majority for wills, this rule does not apply to wills in India.
According to the Indian Majority Act, the minority terminates at the age of 18 years, but if the minor is one whose guardian has been appointed by the court, the minority terminates at the age of 21 years. Thus, a person of 18 years or 21 years, as the case may be, is competent to make a will.
A minor is incompetent to make a will but when a will is made by a minor it may be subsequently by validated by his ratification on attaining majority. In Abdul Manan Khan vs Murtaza Khan, Patna High Court held that any Mohammedan having a sound mind and not a minor, may make a will to dispose of his property.
- Will of a person committing suicide
Suicidal individuals’ wills are recognised in Sunni law. Shia law states that a will made by someone who has taken any action that would constitute suicide is invalid, but a will written before to doing any such action is permissible.
- Will procured by Undue influence, fraud and coercion
A will procured by undue influence, fraud and coercion or fraud is not valid, and the court takes great care in admitting the will of a pardanashin lady.
LEGATEE AND HIS COMPETENCE
Anyone who is able to possess property may be named as a legatee in a will. Age, gender, faith, or religion are therefore not obstacles to receiving a bequest. No one may be forced to become the beneficial owner of shares. Therefore, following the testator’s passing, the legate’s verbal or implicit consent is required in order to complete the title to the subject of the gift.
- Bequest to an institution
A bequest may be validly made for the benefit of an institution or for religious or charitable object which is not opposed to Islam.
- Bequest to a non-Muslim
A bequest in favour of a non-Muslim is valid.
- Bequest to testator’s murderer
According to Sunni Law, a bequest to a person who has caused the death of the testator whether intentionally or unintentionally is invalid. According to Hanafi Law, if the heirs agree, a will regarding someone who was the cause of the testator’s death may be lawful.
In accordance with Shia Law, it may only be considered lawful if it was done so knowingly and not mistakenly or unintentionally.
- Bequest to an unborn person
A child who is born within six months of the date of making the Will is treated as a legatee in existence and hence competent to take the bequest. But in Shia Law, a bequest to a child in the womb is valid, if it is born in the longest period of gestation, ie, ten lunar months.
- Bequest for a charitable object
A lawful bequest is one that benefits a charity or religious cause. For example, if a bequest is made in God’s manner, it is lawful, and the legacy must be spent on good and pious goals, the only need is a general aim to benefit others.. Under Muslim Law, certain restrictions have been imposed on the right of the legators to make a Will depriving the right of the heirs.
SUBJECT OF WILL AND ITS VALIDITY
Essentials– The following are the requisites of a valid Will
(1) The property must be capable of being transferred.
(2) The property must be in existence at the time of the testator’s death. It is not necessary that it should be in existence at the time of the making of the will.
(3) The testator must be the owner of the property to be disposed of by Will.
- Bequest in future
A bequest cannot be made of anything to be performed or produced in future.
- Alternative bequest
An alternative bequest of property, ie, to one or failing him to the other person is valid. The bequest to the first person if he is in existence at the time of the testator’s death will be deemed to be absolute. Hence, he will take the bequest. If the first person predeceases, the testator, the second person will take the bequest.
- Contingent bequests
Bequest of a property which is conditional to take effect on the happening or not happening of an uncertain event is void.
- Conditional bequest
A bequest with a condition which derogates from its completeness will take effect as if no condition was attached to it. If the request will be valid while the condition will be void.
- Bequest of life-estate
In accordance with Sunni law, a bequest of life estate is treated as a bequest with a condition attached to it, and as such, the rule of a conditional gift applies, meaning that the bequest takes effect while the condition is void. For example, a bequest to A for life and to B after his death is in its legal effect a bequest to A, absolutely, and B takes nothing under it. A bequest of a life estate is thus not recognised under Mohammedan law.
TESTAMENTARY POWER AND LIMITS
(1)- Limitations as regards the person
The general rule in this regard has been very clearly laid down in Ghulam Mohammed v. Ghulam Hussain. It was held in this case that a bequest in favour of an heir is not valid unless the other heir’s consent to the bequest after the death of the testator.
(2)- Limitations a s regards the property
The general rule with regard extent property that may be disposed of by Will is that no Muslim can make bequest more than one-third of his net assets after payment of funeral charges and debts.
FORMALITIES OF A WILL
There are no precise requirements for the execution of the Will that are specifically prescribed by Islamic law. When authenticating a will, the legator’s purpose is extremely important. The essence of the aim must be plain, unmistakable, and apparent.
A will can be created verbally, in writing, or even by gesticulation.
A straightforward spoken statement is also accepted as a legal Will. It is not necessary to adhere to any certain procedure or formality in order to create a will. Any spoken declaration is sufficient. But it is a heavy weight to support such a Will. An oral will eventually has to be proven to be extremely accurate in terms of date, time, and location.
No particular form is specified for the declaration of a Will in writing. A will is nonetheless legally binding even if neither the legator nor the witnesses sign it. It doesn’t matter what the document’s name is. It will be regarded as a legitimate Will if it satisfies the requirements for a will.
Will made by gesticulation
An Islamic will may be expressed through gestures. For instance, if a sick person wishes to leave a bequest but is unable to talk owing to weakness, provides a broad nod of the head to indicate what he is trying to say, and if that is understood, and he subsequently passes away without regaining his capacity to speak, the gift is legitimate and legal.
EXCEPTION TO THE GENERAL RULE
The following are the exception to the above-mentioned general rule:
(1)- Under Hanafi law, a bequest or more than one-third of the net assets may be valid, if the heirs, whose rights are infringed thereby give their consent to the bequest after the death of the testator. In Shia Law such consent validates the Will whether given before or after the testator’s death.
(2)- If the testator leaves no heirs, the bequeathable one-third rule mentioned above will not be applicable. The ability of the government to seize an heirless person’s inheritance will not in any way limit an individual’s freedom to dispose of his property anyway they see fit. Government, then, is not an heir to an heirless individual.
Revocation of will- Mohammedan confers on a testator unfettered right to revoke his will. He may revoke it at any time. The revocation may either (i) express, or (ii) implied.
Express revocation- An express revocation may be oral written, e.g., A makes a testamentary disposition of land in favour of B. At any time after making the disposition he says “the land that I gave to B is for X’. These words will amount to express revocation of the bequest. In interpretation of the Wills, the intention of the testators is of paramount importance. Thus, if the testator bequeathed by Will the same property to two more persons they will share the property equally.
Implied revocation- Revocation of a bequest may be implied, e.g., where the testator subsequently transfers the subject-matter of will or destroys it, or completely alters its nature or makes such additions to it without which the property cannot be delivered, etc. Where A bequeaths a land to B and sub subsequently builds house over it, the bequest stands revoked. Similarly, where the subject matter of bequest is a house and the testator sells it, or makes a gift of it, the revocation completes by implication.
A will is a legal tool that grants a legatee a free-of-charge property right that is postponed until the legator’s passing. It offers a legator the chance to partially amend the law of succession. This is because it gives those relatives who are legally barred from inheriting under Islamic law the ability to acquire a portion in the property. A person may bequeath their possessions to anybody they want under the Islamic rule of will. However, it also preserves a logical equilibrium between the law of inheritance and the devolution of property under a Will.
Author: Animesh Nagvanshi,
ICFAI, Dehradun and 3rd Year/ Student