Concept of Will under Muslim Law

Concept of Will under Muslim Law

INTRODUCTION

When we talk about ways to make disposition of property, there are numerous ways in Hindu Law as well as Muslim Law. Under Muslim Law, a Mussalman can dispose his property by way of gift, by creating waqf or by making a will.

When we talk about the concept of Will under Muslim Law, it is sort of a bargain between two different propensities. The first one is, a view of the Prophet that is after the death of a person his property has to be distributed to his heirs and this concept is regarded as divine law and any contravention to it is considered unacceptable. The other one is that it is moral duty of every Mussalman to make appropriate arrangements for his property after his death.

MEANING AND NATURE

Generally, a Will is also called ‘testament’ and is an instrument which enables a person to dispose off his own property to someone to whom he desires to give after his death. Generally, a Will comes into effect after the death of the person who executes such a Will. In simpler words, we can say that a Will is a legal declaration of transfer of property by a person to another after his death.

The term ‘Will’ is the Anglo-Mohammedan term for its Arabic equivalent ‘Wasiyat’. The term signifies a moral exhortation, specific legacy or the capacity of the executor, executorship. A document embodying the will is called Wasiyatnama. A will has been defined as “an instrument by which a person makes disposition of his property to take effect after his death, and which is in its own nature, ambulatory and revocable during his life.

A will from the Muslim’s point of view is a divine institution, since its exercise is regulated by Quran. It offers to the testator the means of correcting to a certain extent the law of succession, and enabling some of those relatives who are excluded from inheritance to obtain a share in his goods and of recognizing the services rendered to him by a stranger, or the devotion to him in his last moments.

According to Section 2(h) of Indian Succession Act, 1925, “will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”.

Under Muslim Law, a will executed by a Mussalman is called ‘Wasiyat’. The person who executes a Will is known as legator or testator and the person in whose favour the Will is executed is called legatee or testatrix. The famous Muslim Jurist Ameer Ali was of the opinion that Will is a divine institution because its exercise is regulated by the Holy Quran.

According to Muslim Law, there is a strict rule that governs the validity of a Will. Accordingly it states that a Muslim can make a Will in favour of any person but only to the extent of one-third of the total property and if the property is given more than that in the Will then the consent of the legal heirs is compulsory.

ESSENTIALS OF A VALID WILL

Under Muslim Law, a valid will is that which is having certain essentials –

1. The person making a Will i.e., legator must be competent to make a will.

2. The legatee shall be capable to taking the endowment.

3. The property which is given by legator must be bequeathable property.

4. There must be free consent of legator and legatee.

5. The legator should have testamentary rights over the property.

WHO CAN MAKE A WILL?

For the purpose of making a valid will, the competency of the legator is of the most significance. A legator is considered to be competent to make a will if he fulfils the following requirements-

1. He must be a Muslim- Under Muslim Law, a will must be made by a Mussalman then only it is considered as authentic one. In a matter where Muslim has married under Special Marriage Act, 1954 then Will made by such person will be regulated according to the provisions of the Indian Succession Act, 1925 and not by the Muslim Personal Law.

Under Muslim Law, there are two schools of Muslim with different views so the Will be governed by the rule of that school to which legator belongs at the time of the declaration of the Will.

2. Soundness of Mind- While making a Will the person making such Will must be of sound mind at that time. According to Muslim Law, it is said that a legator must possess a perfect ‘disposing mind’ at the time of execution of will. In simple words, we can say that the legator while making a Will must be competent enough to understand his actions and the legal consequences of such actions not only for the particular time period when the will is made but also sustain the same till his death. A bequest made by a person of unsound mind cannot be deemed valid, if he becomes of sound mind subsequently. In the converse case, a bequest made by a person while of sound mind become invalid if the legator is permanently disabled by unsoundness of mind.

3. Age of majority- While executing the will, the legator must attain the age of majority. Generally, the age of majority under Muslim Law is governed by Indian Majority Act, 1875, providing the exception in cases related to dower, marriage and divorce.

As per the Indian Majority Act, 1875, the minority terminates at the age of 18 years but if the minor is one whose guardian has been appointed by the Court then the minority will terminate at the age of 21 years. Hence, a person of 18 years or 21 years, as the case may be, is competent to make a Will.

*Attempt to suicide by person making a Will- Under Sunni Law, the will of a person committing suicide is valid. But under Shia Law, a will made by a person who has done any act towards the commission on suicide is not valid, the logic behind this concept is that if a person has attempted suicide, he cannot be regarded in his normal state of mind and is considered mentally unstable and disturbed.

However, both Shia and Sunni law upheld the validity of a Will by a legator before attempting to commit suicide.

4. Consent of Legator- While making a will, there must be free consent of the legator. If it is found that a will is executed by a legator under coercion, undue influence or fraud will be treated as null and void and therefore, the legatee will not be entitled to get any property under the will.

The free consent is generally assumed by the law unless it is proved. In the case of a Pardanashin lady, the free consent is not presumed by the law and the legatee has to prove that the Will has been made by the lady exercising her independent decision.

LEGATEE AND HIS COMPETENCE

Like the competency of the legator, the competency of the legatee is another essential requirement of a valid will. The following are important requirements of a legatee who should be capable of taking a Will executed by the legator.

1. Must be a person in existence- It is necessary that a legatee must be competent to take a Will on such a condition that he must be living at the time of death of the legator. Thus, sex, age, creed or religion are no bar to the taking of a bequest.

2. Child in the womb of mother- A child in the womb of the mother is considered as a living person and hence, is a competent legatee under Muslim Law. There are two conditions for it. The first one is that he should be in existence in the womb of the mother at the time of declaration of Will. Secondly, such child must be born alive within the six months from the date of execution of Will as per the Sunni Law and within 10 months according to Shia Law.

3. Murderer of Legator- As per Sunni Law, a bequest to a person who caused the death of the testator whether intentionally or unintentionally in invalid. Under Hanafi Law, a will in respect of a person who has caused the death of the testator can be validated if the heirs have given their consent.

According to Shia Law, it is invalid if it is caused intentionally and not if accidentally or unintentionally.

4. Consent of Legatee- Prior to requesting legal title to the legatee under a Will, it is necessary to take the consent of the legatee to know whether he wants to accept a Will ir not. Such acceptance can be expressed or implied.

5. Joint Legatee- In many cases, the legator bequest the property by way of Will in favour of several legatees, they are known as joint legatees. There are two following situations-

a) Where the share is specified

b) Where the share is not specified

The first situation is very clear that in the case of specified share, there is no question of any doubt. But if a second situation arises then the general rule is applied and the property is supposed to be divided equally among the legatees.

FORMALITIES OF WILL

Under Muslim Law, there is no any expressed formalities for the execution of the Will. In validating a Will, the intention of legator plays a significant role. Such intention of legator must be explicit, unequivocal and clear in nature. A will can be made orally or in writing or by any other proper gesture.

ORAL WILL

A simple oral declaration is also regarded as a valid Will. It is not necessary or abiding to follow a certain process or procedure in order to constitute a Will. But the burden to validate such a Will is very brawny.

WRITTEN WILL

A will can be written also and for a written Will no specific form is described. A written Will is valid though it is not signed by legator or attested by the witnesses. If a document possesses the important characteristics of a Will then it will be considered as a valid Will.

WILL MADE BY GESTURE

Under Muslim Law, a Will may be made by gestures. For isntance, if any sick person makes a bequest and is unable to speak due to his illness and gives a nod with his head in a comprehensive manner and if it is clear and precise what he is trying to convey and subsequently he dies without regaining his ability to speak then such endowment is valid and completely lawful.

THE SUBJECT MATTER OF A WILL

Any kind of corporeal or property whether it is movable or immovable can be considered as the subject matter of a Will. But there are two conditions when a legator can bequest his property in a Will-

1. When he is the owner of the property at the time of his death.

2. Such property must be transferable.

In certain matter, a property endowed under a Will may or may not exist at the time of execution of Will but it is compulsory that such endowment must be in ownership of the legator at time of his death.

LIMITATIONS ON TESTAMENTARY POWERS

The testamentary capacity of a Muslim is limited. He does not possess an unlimited power of making disposition by Will. There are two-fold restrictions on the power of a Muslim to dispose of his property by Will. The two-fold restrictions are in respect of the person in whose favour the bequest is made, and as to extent to which he can dispose of his property.

LIMITATION AS REGARDS TO THE PROPERTY THAT CAN BE BEQUETHED

The general rule with regard to the extent of property that may be bequeathed of by Will is that no Muslim can make a bequest of more than one-third of his net assets after payment of funeral charges and debts. Any endowment which is exceeding the limit of one-third Will cannot be enforced unless the heirs of the legator give their consent for the same then only such bequest is valid. If the consent of heirs is not given then the bequest will be valid to the extent of one-third only and the remaining two-thirds Will be transferred by way of intestate succession.

A Mussalman who does not has any legal heir may give his property to anyone and in whatsoever amount he may desire to give. But in a case where Muslim has legal heirs and he bequeathed his property to a non-heir or a stranger, then the consent of legal heirs is important in case the property exceeds the one-third of his total property.

The main reason behind this rule is to protect the rights and interests of legal heirs which may adversely get affected in case of such bequest.

LIMITATION AS REGARDS THE PERSON TO WHOM THE PROPERTY IS GIVEN

The general rule, in this regard has been very laid down in Ghulam Mohammed v. Ghulam Hussain (54 Alld. 98). It was held in this case that a bequest in favour of an heir is not valid unless the other heirs consent to the bequest after the death of the testator.

The reason behind such a rule is that a legator may make a bequest in favour of one of the legal heirs and giving more precedence to him may result in a feeling of jealousy and enmity among other legal heirs.

On the contrary, Shia Law does not discriminate between a heir and non-heir. A Will can be made in favour of anyone till the extent of one-third of the property is treated to be valid.

CONSTRUCTION OF WILL

According to general principles, a Will has to be made as per the ruled laid under Muslim Law and with clear and precise language showing the unambiguous intention of the legator. A Will is a document made by a person during his lifetime and comes into effect after his death. Hence, a Will should be interpreted to accomplish the real intentions of the legator after his death. In certain cases, the language of the Will may not be clear and failed to show the real intention of the legator then it should be left to the discretion of the heirs to elucidate such Will in whatever way they want.

Also Read: Classification of Guardianship under Muslim Law

REVOCATION OF WILL

Mohammedan Law confers on a testator unfettered right to revoke his Will. He may revoke it at any time. The revocation may be either express or implied.

Express Revocation- An express revocation may be either oral or written, for instance, ‘A’ makes a testamentary disposition of property in favour of ‘B’. At any other time after making the disposition, he says “the property that I gave to ‘B’ is for ‘Y’. These words will amount to express revocation of the Will. While interpreting such wills, the intention of the testators is of paramount importance. Hence, if the testator bequeaths by will the same property to two or more persons they will share the property equally.

Implied Revocation – Revocation of a bequest may be implied. For instance, where the testator subsequently transfers the subject matter of will or destroys it or completely alters its nature or makes any such additions to it without which the property cannot be delivered, where ‘A’ bequeaths land to ‘B’ and subsequently builds a house over it, the bequest stands revoked.

Subsequent Will- Where a legator makes a Will, and by a subsequent Will gives the same property to someone else then the prior bequest is revoked. But a subsequent bequest though it be of the same property, to another person in the same Will does not operate as a revocation of the prior bequest and the property will be divided between the two legatees in equal shares.

CONCLUSION

A Will is a document which provides right to property to the legatee in a gratuity manner and is available after the death of the legator. It provides the right and opportunity to the testator to correct the law of succession to some extent. The Muslim Law of Will confer a right to a person to devolve his property upon a person of his choice while keeping in mind the rational balance between the law of inheritance and devolution of property under a Will.

REFERENCES

• Ahmad Aqil, A Textbook on Mohammedan Law, Central Law Agency, Twenty-Sixth Edition Allahabad-2
• http://www.legalserviceindia.com/legal/article-251-concept-of-will-under-muslim-law.html
• https://www.scribd.com/doc/311452270/Wasiyat