WASIYAT/WILL under Islamic Inheritance Law : Types, Registration, Revocation & Landmark cases

wasiyat
simplekanoon.com

Introduction

Muslim testamentary succession is entirely governed by the Muslim Personal Law which covers the powers to make the Will, the nature of the Will, the execution procedure, conditions of validity, etc. A will is essentially a legal declaration that signifies the intention of the testator (the maker of the will) concerning the distribution of his or her property which takes effect after death. The concept of wasiyat under Islamic law is a bargain between two different propensities. Tyabji defines Will as conferment of the right of property in a specific thing or a profit or advantage or a gratuity to take effect on the death of the testator.

Before the death of the testator, a testator has full right to the property. Wasiyat becomes effective only after the death of the testator. Under Islamic law, a wasiyat can be made orally also, no written document is required. Under Islamic Law, a Muslim can dispose of his property in the following ways:

  • By gift (Hiba)
  • By creating a wakf
  • By making a will (Wasiyat)

Hiba: Hiba means the transfer of the possession of the property, movable and immovable, from one person to the other willingly and without any reward.

Wakf: The meaning of wakf is the detention of a thing in the implied ownership of Almighty God, in a way that its profit may be applied for the benefit of human beings.

Wasiyat: Under Islamic law, wasiyat is an instrument by which a person arranges for his property to take effect after his death.

Concept And Nature Of A Will

On the death of a Muslim, four duties are supposed to be performed, which includes:

  • Payment of funeral expenses
  • Payment of his/her debts
  • Execution his/her will
  • Distribution of the remaining estate amongst the heirs according to Shariat.

If a Muslim dies without making the will, then the rules of intestate Succession are applied for the distribution of the property among heirs. However, if he/she dies leaving a will behind, then the property is distributed among his/her heirs according to the rules of Testamentary Succession. 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 favor the Will is made is known as ‘legatee’ or ‘testatrix’.

Muslim law requires no formalities to execute the will, the will can be made in writing or oral, or even by gestures. Any expression which signifies the intention of the testator is sufficient to make a will under Islamic law.

Types Of Will

Under Islamic law, a will can be made in the following ways:

  • Oral Will
  • Written Will
  • Will made by Gestures

Oral will

 In the case of an oral will, no specific number or class of witnesses is necessary for the validity of a will. However, few conditions need to be satisfied such as:

  • Legator’s intention to make a will must be proved beyond doubt.
  • Terms of the will must be proved
  • Will must be proved with the greatest possible exactness

An oral will have to be proved with extreme fidelity and precision in date, time, and place.

Written Will

In the case of a written will, there should be at least two witnesses present at the time of declaration of a will. A will is still considered valid, even if it is not signed by the legator or attested by the witnesses. If the testator fails to mention the quantity or amount of the property, regard may be given to many properties owned by the testator at the time of death

Will made by gestures

Under Islamic law, a will can be made by gestures. Any expression which signifies the intention of the testator is sufficient for constituting a will.

Essentials Of A Valid Will

For a will to be valid, the following conditions are to be satisfied.

  • Capacity/Competence of Testator
  • Competence of Legatee
  • Subject Matter
  • Testamentary Capacity
  1. Capacity of Testator

According to Muslim Law, a legator has to fulfill the following conditions to fulfill the criteria of valid will:

  • Age of majority
  • Validity of gifts made by guardians
  • Validity of a person who has attempted suicide
  • Soundness of mind

Under Shia Law, a will made after the testator who was injured by his actions or tried to commit suicide is declared invalid. However, there is a difference in opinion among Muslim Law Scholars. The Shafi school of Sunni Law has given certain conditions on who is competent to make a will:

  • A person who is capable of duties can make a valid will
  • A person who is under inhibition on account of insanity cannot make a will
  • A person who is not on his senses cannot make a will
  • A will made by a child is also not valid.

A will cannot be made by the guardian on behalf of the minor or insane person

  1. Competence of Legatee

The Legatee may be a Muslim or a Non-Muslim who is not hostile towards Islam, man or woman, a major or a minor, or even a child in the womb provided the child is born within 6 months of the death of the testator. Under Sunni law, if a legatee is responsible for the murder or causing death to the testator, then the will be made in his/her favor. However, under Shia law, if the legatee intentionally caused the death or murdered the testator, then the legatee will be incompetent to receive the benefits.

  1. Subject Matter

The subject matter doesn’t need to exist at the time of making the will but it must exist when the will becomes operative i.e., at the time of the death of the testator.

  1. Testamentary Capacity

Under Shia law and Hanafi law, a Muslim cannot dispose of by will more than one-third of the net assets by allowing for the debts and funeral expenses of the testator. The remaining two-third share should be made available for distribution amongst the heirs.

Who Can Make A Will?

wasiyat
Source: Investopedia

To make a will, a legator is considered to satisfy the following discussed features.

  • He/she must be a Muslim
  • Sound minded
  • Should attain the age of majority
  • Attempt to suicide by the legator
  • Consent of legator
  1. He/she must be a Muslim:

Under Islamic law, a will is considered a valid will if is made by a Muslim. If a legator is Muslim at the time of execution of the will, then only a will be governed under Muslim personal law. Will is governed by the rule of that school to which the legator belongs at the time of the declaration of the Will. Therefore, if a legator is a Sunni Muslim, he/she will govern under the Sunni law, and if the legator is a Shia Muslim, then the Shia law will govern his/her will.

  1. Soundness of Mind

Under Muslim law, the legator must be of sound mind at the time of execution of the will. A legator must be competent to understand his actions and the legal consequences of what is he doing. 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.

  1. Should attain the age of majority

The legator must attain the age of majority at the time of execution of the will. A will executed by a minor would be considered void, under Muslim law. A will ratified by a major is considered valid.

  1. An attempt of suicide by the legator

Under Shia law, a will executed by a person who has attempted to commit suicide is considered void. According to Shia law, when a person attempts to commit suicide, he/she is assumed to be mentally unstable and disturbed. However, under Sunni law, a will executed by a person who has attempted to commit suicide is valid.

  1. Consent of legator

At the time of execution of the will, free consent of the legator is essential. Any will which is executed under coercion, fraud, or undue influence is considered null and void. The consent given by the heirs may be expressed or implied. It may be oral or in writing. It can also be implied from conduct. Mere silence or inaction would not be taken as consent even if heirs were present at the time of the proceedings for effecting the names in the Will.

Who Can Take Property Under A Will?

A Will can be declared in favor of a non-Muslim, minor or insane person. A legatee can take the property under the following characteristics:

  • Person in existence
  • Child in mother’s womb
  • Consent of legatee
  • Joint legatee
  • Murderer of the legator

Person in existence

A legatee can take a will on the condition that he must be living at the time of death of the legator. Will comes into effect only after death; therefore, the legatee needs to be present at the time of death of the legator. He/she must be in existence and competent to hold the property.

Child in mother’s womb

Under Muslim law, a child in the mother’s womb is considered a competent legatee under two conditions:

  • The child must be in existence in the mother’s womb at the time of declaration of the Will.
  • 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.

Under both conditions, the child in the mother’s womb is competent to be a legatee

Consent of legatee

Before transferring any will, it is important to take the consent of the legatee. A legatee has a complete right to turn down the Will. So, if a legatee declines to own any property transferred to him, then the Will is considered to be incomplete and invalid.

Joint legatee

A will can be transferred in favor of several legatees in two ways:

  • If the share of all the legatees is specified explicitly by the legator, then the property Will be distributed as per the ratio mentioned by the legator in the Will.
  • When the share of the legatee is not mentioned, then the property is supposed to be divided equally among the legatees.

Murderer of the legator

Under Shia law, if a legatee causes the death of the legator, he is qualified to take the property and the Will is treated as a valid Will. However, under Sunni law, if a legatee causes the death of the legator, then he is not allowed to take the will.

Abatement Of Legacies

A Muslim testator can make a will of only one-third of his property without the consent of his/her heirs. To make a will of more than one-third of the property, a Muslim testator is required to take consent from all the heirs. The law of abatement is different under Sunni law and Shia law.

Sunni Law

If a Sunni Muslim bequeaths his property in a certain ratio which is the limit of one-third, then the abatement is done in the same ratio in which the property was distributed.

Shia Law

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.

Registration And Revocation Of Wills

It is not necessary to register a will. However, a law recognizes a registered will when the execution of a will is disputed. Section 40 and 41 of the Indian Registration Act deals with the registration of the will. A will presented for registration by any other person entitled to present it shall be registered, if the registering officer is satisfied:

  • that the will or authority was executed by the testator
  • that the testator is dead
  • that the person presenting the will is entitled to present the same

The testator may revoke his will at any time before his or her death either expressly or impliedly. A testator is lawfully empowered to make a subsequent will of the same property and the previous will would be revoked. Under Muslim Law, the following conditions can stand as revocation:

  • sale of the bequeathed property
  • gifting the property
  • when the property is materially changed or altered by way of addition and the property cannot be delivered

It is important to show that a legator has intended to alter the will and the alteration in the deed, is a result of an altered intention in the interest of justice and good conscience.

Landmark Judgements

will
`Source: Mint

Muhammad Junaid vs Aulia Bibi, 1920

In this case, the court 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 the heir and the rest two-third given to a legal heir.

Husaini Begum vs. Mohd. Mehdi, 1927

In this case, the court 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.

Altaf vs. Ahmad Bux, 1876

In this case, the court held a Muslim can make a will orally or in writing. Muslim law requires no specific formalities for the creation of a will. It may be made in writing or oral or even by gestures.

Abdul Karim vs. Shiofiannisa, 1906

In this case, the court held that where the testator has disposed of the bequeathed property by way of alienation, it will be presumed that the testator has revoked the bequest.

Badrul Islam Ali Khan vs. Ali Begum, 1935

In this case, the court held that a will in favor of a Hindu temple or a society that propagates another religion will not be a valid will. However, an institution engaged in promoting education and self-reliance is a valid one as long as it is not against Islam.

Conclusion

A will is a legal declaration that signifies the intention of the testator concerning the distribution of his or her property which takes effect after death. The Muslim law allows a person to devolve his property upon a person of his own choice. It also maintains a rational balance between the law of inheritance and devolution of property under a Will. The object of a will is to prevent a person from interfering and defeating the claims of his lawful heirs and to settle claims of even strangers or other relatives who are not heirs.

Frequently Asked Questions (FAQs)

Can a Muslim daughter claim her father’s property?

Under Muslim law, the daughter can claim a share as per Muslim inheritance law.

What are the modes of revocation of the will according to Muslim law?

A Muslim testator may revoke, during his lifetime, any will made by him expressly or impliedly.

What is the difference between will and gift?

The main difference between the two is that a gift deed operates as soon as it is executed. Whereas, a will is operative only on the death of the testator.

Can a murderer of the legator take the property?

Under Shia law, if a legatee causes the death of the legator, he is qualified to take the property and the Will is treated as a valid Will. However, under Sunni law, if a legatee causes the death of the legator, then he is not allowed to take the will.

Under Muslim law, who can make a will?

To make a will, a legator is considered to satisfy the following features: he/she must be a Muslim, should be of sound mind, should attain the age of majority, there should be a consent of legator.

Can a person who attempted to commit suicide form a will?

Under Shia law, a will executed by a person who has attempted to commit suicide is considered void. According to Shia law, when a person attempts to commit suicide, he/she is assumed to be mentally unstable and disturbed. However, under Sunni law, a will executed by a person who has attempted to commit suicide is valid.

Can a will be made by gestures?

Under Islamic law, a will can be made by gestures. Any expression which signifies the intention of the testator is sufficient for constituting a will.

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