WASIYAT – WILL UNDER MUSLIM LAW
In Muslim law, The law of transfer of one property to another is specified in many spheres such as unconditional gift that is Hiba, Hedaya – 482(Muslim text), transfer of property to pious, religious or charitable that is waqf,(defined in waqf act,1954) and if a disposition of property by their owner to someone after their death then, it is said to as will of the owner to transfer property and from Arabic term it is also called wasiyat in Mohammedan law.
Wasiyat (will in Muslim law), means an instrument by which a person can testamentary disposition of their property to take effect after his death.
According to Prophet Muhammad, will is the divine law and It is the duty of every Muslim to provide maintenance to their heirs and other relatives to make a proper arrangement of their property to their loved once that they can enjoy it after his death also.
A person who makes the wasiyat of his property to someone is called ‘legator’ or ‘testator’ and the person that enjoyed the will or whose favour the will is made is known as ‘legatee’ or ‘testatrix’
Wasiyat is only executed after the death of the legator and it is revocable at any time before his death. A person can make wasiyat of property to anyone only to the extend of one third but if they can make a wasiyat of the whole property then they must have taken the consent of their legal heirs the purpose of this one-third principle is that right to share of lawful heirs is not infringed.
ESSENTIALS OF A VALID WASIYAT
The first requirement of wasiyat is there must be a legator who make the wasiyat of their property to another. And, according to Muslim law, some requirement is to be fulfilled by legator to execute a valid wasiyat and the conditions are;
- The legator must attain the age of majority: There must be a major Muslim only executes wasiyat of their property and the majority age is governed by Indian majority act that is 18 years and in case of under the supervision of a court of wards then completion of 21 years, a minor cannot execute a wasiyat it becomes void but when it attains the age of majority, they are capable to execute the wasiyat.
- The legator must be a Muslim: When a Muslim person can make a wasiyat of their property only then it is holding legal value perhaps it is not governed by Muslim personal law, and in case that Muslim can be married under special marriage act so their will is governed by Indian Succession Act, 1925 not by Muslim personal law.
If at the time of execution of the will, the legator is Muslim but afterwards they convert to another religion so in this case, the wasiyat is valid and governed by Muslim law.
The legator must be of sound mind: if a person makes a wasiyat of their property he/she must be of sound mind and they have knowledge of that on what basis they execute their property by wasiyat and what is the legal consequences by their action. A wasiyat is only valid that the legator is of sound mind at the time of making it and till before their death, if they are sound at the time of making but after some time they can lose their temper so in this case, The wasiyat is void.
In Shia law, one condition is also applied to capacity of legator that is if a legator is committed attempt to suicide by any means such as poison, knife etc after their making of a will. Then, they would be said as an insane person because they don’t have the capacity to matter their own life so how they execute their property in the right hands by will.
- There must be free consent of the legator: The consent of legator must be free consent by the way that they cannot be making the wasiyat of their property under coercion, fraud, misrepresentation and undue influence etc.
The second essential is the person on whose behalf the wasiyat is entitled or the person that enjoyed the property of wasiyat. But in Muslim law the legatee only entitled to the property when they fulfil the conditions;
- The acceptance of the legatee: it is not enough that legator can make the wasiyat and give to the legatee, even the consent or acceptance of legatee is also mandatory to execute it. Their consent must also be free and they are free to reject the offer and they give their consent either expressly or impliedly.
- The legatee must be a person that alive: At the time of execution of the wasiyat (after the death of the legator), the legatee must be alive and in case the legatee is dead then the wasiyat is void.
The legatee must include any person without the restriction of caste, class, age, sex, religion, gender and capacity of mind etc. Even, charitable and religious also include in person.
And, even a child in mother’s womb also includes in the category of the person because he/she also existed in the world.
- The legatee must not be of evil intention: In today’s world greediness at their par so many times legatee have thought that they murder the legator and enjoy the property but if they do so or any other harm caused to legator with this evil intention, then the legatee is not be entitled to enjoy their right.
- Joint legatee: In many times the legator can make a wasiyat to more than one legatee so in these cases the distribution of property in two ways ;
- If the share is specified: In the case, if legatee can specify the share of each legatee into the wasiyat then the execution is also in the same way no such confusion is there.
- If the share is not specified: In the case, if the legator not specified the share in the will then the general rule applies that equal share is distributed to each legatee.
3.The subject matter of a wasiyat:
The third essential is property, this is also the basic element of a wasiyat. Some condition of a valid property that can be executed in a wasiyat by one person to another;
- The property is of any nature such as movable and immovable, corporeal and non-corporeal, there having only two conditions that are the legator must be the owner of the property and the property is transferrable.
Muhammad v. Aulia bibi, it was held that, if a legator makes a wasiyat of the whole property to an heir and non-heir so, the non-heir will take the one-third of property without the consent of heir and rest two-third given to a legal heir.
Husaini Begum v. Mohd. Mehdi, it was held that if any legator makes a wasiyat of his full property to a legal heir and exclusion of other legal heirs and infringed their right to a property so this is not a valid wasiyat under Muslim law.
FORM OF WASIYAT
A legator can make the wasiyat into both oral or written form because in Muslim law the only intention of making is a matter, not their form;
Oral: An oral promise is sufficient to form a wasiyat but this form of will is proved by anyone is so problematic, only date, time, place and some witnesses address the right of the legatee.
Written: A written document is sufficient not any specified format mention in Muslim law although if a signature is not mentioned in that paper here also the wasiyat is valid.
Gestures: Even the wasiyat by gestures is also valid in Muslim law. This provides for the condition of people who don’t speak by weakness and by some any other reasons.
REVOCATION OF THE WASIYAT
The wasiyat is revoked by legator at any time before his death even they change the conditions, legatee, revoke only some part etc. They have full authority given by Muslim law. The revocation is also in any way expressed or implied.
The Muslim will (wasiyat) is governed according to their caste likewise Sunni and Shia law. This testamentary disposition of property is available to the person to fulfil their duty to maintain their family member even after his death.
Author: RAHUL SHARMA,
Ideal Institute of Management and Technology affiliated to GGSIPU/ 2nd Year/ Law Student