will or testament

This article is written by Neha Gururani, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the Islamic Law of Will and the differences between the Sunni and Shia Law with regard to the Laws relating to Will.

Introduction

There are enormous ways to make disposition of property in Hindu law as well as in Islamic Law. Under Islamic law, a Muslim can dispose of his property by gift, by creating a wakf or by accessing his testamentary powers i.e. by making a Will.

The concept of a Will under Islamic law is a sort of bargain between two different propensities. One, the view of the prophet is clear that after the death of a person, his property has to be distributed to his heirs and this rule is considered as divine law and any interference to it is unacceptable. On the other hand, it is a moral duty of every Muslim to make appropriate arrangements for his property after his death.

Meaning and nature of Will

Conventionally, a Will, also called ‘testament’ is an implement which enables a person to dispose of his own property to someone whom he wants to give after his death. A Will comes into effect only after the death of the person who created the Will. A Will is a legal declaration of transfer of property by a person after his death.

In Islamic law, a Will executed by a Muslim is known as ‘Wasiyat’. The person who executes the Will is called ‘legator’ or ‘testator’ and the person in whose favour the Will is made is known as ‘legatee’ or ‘testatrix’. A very famous Muslim scholar ‘Ameer Ali’ defined a Will from the point of view of Mussalman as a divine institution because its exercise is regulated by the Holy Quran. At the same time, Prophet had proclaimed that such testamentary powers must not exert any damage to the lawful heirs.

There is a strict rule in Islamic law that governs the validity of a Will. According to this rule, a Muslim can make a Will in favour of anyone, only to the extent of one-third of his total property. If the Will is made beyond one-third of the property, the consent of the legal heirs is mandatory no matter in whose favour the Will is made.

It can be hypothesized that a Will is a kind of gratuitous transfer of ownership made through a testamentary document which comes into play after the death of the legator. As far as the legal concept of Will is concerned, basically it is a gift testamentary.   

Essentials of a valid Will

If we talk about the legal validity of a Will under Muslim law, there are certain requisites which make a Will apt and capable of taking effect. Thus, the following discussed requirements must be satisfied:

  • The legator must be competent to make a Will.
  • The legatee must be capable of taking such endowment.
  • The property which is endowed by the legator must be a bequeathable property.
  • Free consent of the legator and the legatee.
  • The legator must possess testamentary rights over the property.

Who can make a Will?

In order to constitute a valid Will, the competency of the legator is the foremost requirement. A legator is considered to be capable to make a Will if he holds the following discussed features.

  • He must be a Muslim

A Will made by a Muslim only is considered as an authentic Will under Islamic law. If a legator is Muslim at the time of execution of the Will then only the Will is governed by the Muslim Personal Law.

In a case where a Muslim has married under the Special Marriage Act, 1954, the Will made by such Muslim is regulated by the provisions of the Indian Succession Act, 1925 and not by the Muslim Personal Law.

A situation may arise where the legator is a Muslim when he executed the Will but afterwards renounced Islam, thus recognized as a non-muslim at the time of death. A Will created by such a Muslim is considered as a valid Will under Muslim law.

Since there are two schools of Muslim with different views, so, it must be noted that a Will is governed by the rule of that school to which the legator belongs at the time of the declaration of the Will. For example, if a legator is a Sunni Muslim at the time of the creation of the Will, then the Sunni Laws of Will is pertinent.

  • Soundness of mind

When the Will is being made, the legator must be sane. Under Muslim law, it has been quoted that a legator must possess a perfect ‘disposing mind’ at the time of execution of a Will. In other words, a legator must be competent to understand his actions and the legal consequences of what he is doing not only for the particular time period when the Will is being made but also sustain the same till his death.

If a legator is of sound mind when the Will is declared and subsequently turns insane and remains the same till death then, the Will made by such legator becomes void. On the other hand, if a legator executed a Will while he is insane then also the Will is considered as null and void even if he recovers the insanity afterwards and remains the same till death.

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

The legator must attain the age of majority at the time of execution of the Will. In general, the age of majority under Muslim law is regulated by the Indian Majority Act, 1875, with the exception in the case related to marriage, dower and divorce.

Under the Indian Majority Act, the age of majority is specified as 18 years in ordinary case and 21 years if the person is under the supervision of Courts of Wards. Any Will executed by a minor is considered to be void. The validity of such Will is suspended till the legator attains majority. Therefore, in order to create a valid Will, a legator should be of 18 years or 21 years as the case may be. As soon as the legator turns into a major and ratifies the Will, the Will becomes valid in nature.

  • Attempt to suicide by Legator

If a Will is executed by a person who has attempted to commit suicide, such a Will is contemplated as void under the Shia law. The logic behind this rule is that if a person has attempted suicide, he cannot be held in his normal state of mind rather, he is assumed to be mentally unstable and disturbed.

For example, a person who takes poison or seriously hurt himself and executes a Will before his death then, the Will is declared as null and void.

However, under Sunni law, a Will executed in such circumstances is completely valid. Moreover, both Shia and Sunni law upheld the validity of a Will declared by a legator before attempting to commit suicide.

  • Consent of Legator

While executing a Will, the free consent of the legator is mandatory. Any Will, if found to be executed by a legator under coercion, undue influence or fraud Will be treated as null and void and the legatee Will not be entitled to get any property under that Will.

The free consent is generally presumed by the law unless proved. But in case of pardanashin lady, the free consent is not presumed and the legatee has to prove that the Will has been executed by the lady exercising her independent discretion.

Who can take property under a Will?

Besides competency of legator, there is one more essential requirement of a valid Will and that is the competency of the legatee. The following are the characteristics of a legatee who is capable of taking a Will executed by a legator.

  • He must be a person in existence

A legatee is competent to take a Will on condition that he must be living at the time of death of the legator. This is because a Will comes into effect only after the death of the legator and not when it is made by the legator. Thus, a legatee has to be a person in existence at the time of death of the legator.

A Will can be declared in favour of a non-muslim, minor or an insane person. What is important is that a legatee must be in existence and competent to hold the property. The age, sex, caste, religion, gender and state of mind is insignificant in order to become a lawful legatee. A charitable or religious institution is also capable legatee and any Will in favour of it is lawful.

  • Child in mother’s womb

A child in a mother’s womb is treated as a living person and thus, is a competent legatee under Islamic law under two conditions. Firstly, he must be in existence in the mother’s womb at the time of declaration of the Will. Secondly, the child must be born alive within six months from the date of execution of Will under Sunni law and within 10 months under Shia law.

  • Murderer of Legator

A Will comes into effect only after the death of legator. Thus there is a possibility that an avaricious and impatient legatee may cause the death of the legator in order to grab the property as soon as possible.

A legatee kills or causes the death of the legator either intentionally or unintentionally is not allowed to take the Will and generally disentitle to take the property. However, under Shia law, if a legatee causes the death of the legator either unintentionally, negligently or accidentally, then he is qualified to take the property and the Will is treated as a valid Will.

  • Consent of Legatee

Before transferring legal title to the legatee under a Will, it is important to take the consent of the legatee to know whether he wants to accept the Will or not. The acceptance can be expressed or implied. A legatee has a complete right to disclaim the Will. So, if a legatee declines to own any property bequeathed to him, then the Will is considered to be incomplete and invalid.

  • Joint Legatee

Sometimes, legator issues Will jointly in favour of several legatees. In such circumstances, the legatees are known as joint legatees. A Will can be made in favour of joint legatees in two ways-

Where the share is specified

If the share of all the legatees is specified explicitly by the legator himself under the Will, then there arises no point of confusion regarding the share. The property Will be distributed as per the ratio mentioned by the legator in the Will and each legatee Will get the respective share allotted to him.

For example, if a legator executes a Will in favour of his three sons, mentioning that the ratio of the distribution of S1: S2: S3 should be 3:2:1 respectively. Here the property Will be distributed among the three sons in the same ratio as specified by the legator.

Where the share is not specified

It might be possible that under some cases, the share of each legator is not explicitly described. In such cases, applying the general rule, the property is supposed to be divided equally among the legatees. When a Will is made in favour of a class of persons, such class is treated as a single legatee only and each person gets the equal property.

For example, if a legator makes a Will under which the property is to be given to a mosque and the poor people of the locality of the legator, then half of the bequeathable property Will be given to the mosque and the remaining half Will be distributed equally among the poor people in the locality.

Formalities of a Will

Muslim law does not expressly propound any specific formalities for the execution of the Will. The intention of the legator plays a crucial role in validating a Will. The intention must be explicit, clear and unequivocal in nature.

A Will can be made either orally or in writing or even by gestures.

Oral Will

A simple oral declaration is also considered as a valid Will. It is not abiding to follow any particular process or formality in order to constitute a Will. A mere oral declaration is enough. But the burden to corroborate such Will is very hefty. Eventually, an oral Will has to be proved with extreme fidelity with precision in date, time and place.

Written Will

For a Will to be declared in writing, no specific form is described. A Will is valid even if it is not signed by the legator or attested by the witnesses. The name of the document is immaterial. If it possesses the essential characteristics of a Will, then it Will be treated as a valid Will.

Will made by Gestures

Under Islamic law, a Will may be made by gestures. For example, if a sick person makes an endowment and cannot speak due to weakness, gives a nod with his head in a comprehensive way and if it is understood what he is trying to convey and subsequently, he dies without regaining his ability to speak, the bequest is valid and lawful.

The subject matter of a Will

Any type of property, corporeal or incorporeal, moveable or immovable, can constitute the subject matter of the Will. But a legator can bequest a property in a Will only under two conditions-

  • If he owns the property at the time of his death.
  • The property must be transferable.

A property bequeathed under a Will may or may not exist at the time of execution of Will but it is mandatory that the bequeathed property must be in ownership of the legator at the time of his death. The logic behind this rule is very simple. A Will comes into operation after the death of the legator and the transfer of property to legatee takes place from the date of legator’s death and not from the date of execution.

For example, ‘A’ executes a Will giving all his property to ‘B’. Suppose ‘A’ owns a house at the time of execution of Will but at the time of his death, he owns a car as well. Thus, ‘B’ is entitled to have the house as well as the car under the Will.

Principle limitations on testamentary powers

Contrary to the general rule, there are certain restrictions on the testamentary powers of a Muslim. There are two types of restrictions:

  • With respect to the extent of the property that can be bequeathed

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If a Muslim desire to make a Will of his property, he is allowed to do so only to the extent of one-third of the bequeathable property. This extent of one-third is calculated after the expenses of his debts and funeral etc. Any bequest exceeding the limit of one-third Will not come into effect unless the heirs of the legator give their consent to it. In case the heirs do not give their consent, then the bequest Will be valid to the extent of one-third only and the remaining two-thirds Will be transferred through intestate succession.

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

The reason is to protect the rights and interests of the legal heirs which may adversely affect in case of such bequest. If heirs give their consent to give an entire property to a stranger, the Will is valid otherwise it is valid to the limit of one-third.

  • With respect to the legatees to whom the property is given

Furthermore, the second restriction comes into action only where the legatee is one of the heirs of the legator. Whether the property bequeathed is one-third or less, the consent of the other legal heirs of the legator is a dominant factor in order to establish a valid Will. The ground of this rule is that a legator may make a bequest in favour of one of the legal heirs giving more precedence to him which may result in a feeling of jealousy and enmity among the other heirs. 

On the other hand, Shia law doesn’t discriminate between an heir or a non-heir. A bequest can be made in favour of anyone till the extent of one-third of the property is treated to be valid. Thus, it can be concluded that Shia law provides ample powers to make a Will as compared to Sunni law.

Construction of a Will

Generally, a Will has to be construed in accordance with the rules laid under Islamic law and scrutinizing the language and intention of the legator. A Will is a document which is made by a person during his lifetime and comes into effect after his death. So, a Will must be interpreted to accomplish the intentions of the legator after his death. At certain times, the language may not be clear and the intention of the legator is ambiguous. In such circumstances, it is left to the discretion of the heirs to elucidate such Will in whatever way they want.

For example, a legator bequests a house and a shop for his two sons but doesn’t specify what is given to whom. Here, the content of the bequest is perplexed. Thus, it is up to the option of heirs to mutually decide who wants to take what.

Revocation of a Will

Muslim law grants an emancipated right to legator exercising which he can revoke the Will or any part of the Will executed by him anytime. Similarly, he can add something reasonable to the Will as well.

A legator may revoke the Will either expressly or impliedly.

Express Revocation

An express revocation may be done in oral or in writing. For example, if a legator bequests some of his property to a person and by making a subsequent Will he bequeaths the same property to another person, then the first Will is considered to be revoked automatically.

If legator burns or tears off a Will executed by him, then also the Will is said to be expressly revoked. It is to be noted that mere denial of a Will is not sufficient to amount a Will as revoked. Some action must be taken by the legator which indicates his clear intention for the revocation of the Will. 

Implied Revocation

Any act done by legator contrary to the bequest Will revoke the Will. In other words, an act which leads to the annihilation of the subject-matter of the bequest is considered as an implied revocation of the Will. For example, if a legator executed a Will giving land to a person and builds a house on the same land, or if he sells or gifts that land to someone else, then consequently, the Will is said to be impliedly revoked.

Abatement of Legacies

When a bequest exceeds the limit of one-third and heirs deny to give their consent, the ratio of the legatees is subsidised in order to maintain the rule of bequeathable one-third. This reduction in the legacy of the legatees is known as abatement of legacies. Under the Sunni law, the abatement occurs in a rateable manner (proportionally) whereas in Shia law it is done preferentially.

Rateable distribution

This rule of abatement is followed in under Sunni law. In this method, if a Sunni Muslim bequeaths his property in a certain ratio which the limit of one-third, then the abatement is done in the same ratio in which the property was distributed.

For example, ‘T’ is a Sunni Muslim who makes a Will in favour of A, B and C. Under the Will, he directs to give Rs. 4,500/- to A, Rs. 3,000/- to B and Rs. 1,500/- to C and his total property amounts to Rs. 9,000/-. Now, as per the rule, only one- third of the total property is bequeathable. So, one-third of Rs. 9,000/- equals to Rs. 3000/- which is the required bequeathable property. It can be observed that the legator divided the property among A, B and C in the ratio 3:2:1 respectively. Applying the rateable abatement rule, the shares of A, B and C Will be reduced in the same ratio i.e. 3:2:1. Thus, the share of A Will become Rs. 1,500/-, the share of B becomes Rs. 1,000/- and the share of C turns to be Rs. 500/-.

Preferential distribution

The Shia law recognizes a different rule for abatement. According to this school, if the bequeathable property exceeds one-third of the total property and heirs refuse to give their consent, then the rule of preferential distribution is applied. This implies that no reduction Will be done in the shares of the legatees rather the share Will be given on the preference.

The preference is decided by the order in which the name of the legatees is mentioned under the Will. The legatee whose name is mentioned first Will get his full share as specified in the Will and the remaining Will be passed in favour of the second legatee and so on. As soon as one-third of the property is finished, the distribution comes to its end. Therefore, it can be concluded that either a legatee Will get his full share or he Will get nothing.

For example, ‘T’ is a Shia Muslim who executed a Will under which the share of A is Rs. 2,000/-, the share of B is Rs. 1,000/- and share of C is also Rs. 1,000/-. The total property is Rs.9,000/- which is beyond one-third of the bequeathable property. So, one-third of Rs. 9,000/- comes out to be Rs. 3,000/- which is the required bequeathable amount. Now, according to the preferential rule, A Will get his full share i.e. Rs. 2,000/-, B Will get the remaining Rs. 1,000/- which constitutes his full share and C Will not get any share because the bequeathable property exhausted after the share of B.

Comparison of Sunni and Shia law of Will

The two schools of Muslim law differs at various points when the concept of wasiyat (Will) is considered. Following is a comparison table depicting the points of differences between Sunni and Shia law of Will.

 

Basis for Comparison

Sunni law

Shia law

A bequest to an heir

It is invalid even to the one-third of property without the consent of other heirs.

It is valid up to one-third of property and for more than one-third, consent is a must.

Time of Consent

Consent of heirs must be given after the death of the legator.

Consent can be given either before or after the death of the legator.

Legatee causing the death of Legator

If legatee commits murder or causes the death of the legator, he cannot take legator’s property under a Will.

If the death is caused intentionally, legatee can’t take the property whereas if the death is caused accidentally or negligently, then he can take the property.

Suicide attempt by Legator

A Will is valid if a legator commits suicide before or after the execution of the Will.

A Will is valid only if the legator commits suicide after executed the Will.

Child in Womb

Bequest for an unborn child is valid if he is born within 6 months of making the Will.

Bequest for an unborn child is valid if he is born within 10 months of making the Will.

Abatement of Legacies

The rule of rateable distribution is followed.

The rule of preferential distribution is applied.

Legatee dies before Legator

If so happened, the legacy reverts to the legator.

The legacy Will lapse only when legatee dies without leaving an heir or the legator revokes the Will himself.

Conclusion

A Will is a device which confers right to property to legatee in a gratuity manner, postponed till the death of the legator. It provides an opportunity for a legator to correct the law of succession to some extent. This is because it empowers some of the relatives to obtain a share in the property who are legally from excluded from inheritance under Islamic law. The Islamic law of Will allows a person to devolve his property upon a person of his own choice. But simultaneously, it maintains a rational balance between the law of inheritance and devolution of property under a Will.

References

  1. Muslim law in Modern India by Dr. Paras Diwan
  2. http://www.legalserviceindia.com/legal/article-251-concept-of-Will-under-muslim-law.html
  3. http://ijlljs.in/wp-content/uploads/2017/08/Will.pdf

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