CHAPTER
WASIYAT (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. A will is said to be a moral compass of every Muslim person that guides him to maintain a balance between charity and responsibility towards his family without deviating from the right path.
MEANING AND NATURE OF WASIYAT (WILL)
Conventionally, a will, also called ‘testament’ is a method which enables a person to dispose of his own property by giving it 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 a property that is transferred after the death of the owner of such property.
A will is basically a legal document that declares the intention of the testator (maker of the will) in accordance with the distribution of his property, where such disposition comes into effect after the death of the testator.
A will must be bequeathed, maintaining certain restrictions and limitations. The application of such limitations is not uniform under both Sunni law and Shia law.
Under Shia law, a will made beyond one-third of the total estate of the testator is valid only if the heirs have consented to it.
It can, therefore, be held that a will is a voluntary transfer of ownership done through a testamentary declaration, which comes into effect after the death of the testator. The legal concept of will can be hence presumed as a testamentary gift.
PARTIES TO A WASIYAT (WILL)
TESTATOR
The maker of a will is the testator of that will.
A testator must be a Muslim, sane, have attained the age of eighteen, and have consented to the making of such will free from any undue influence or coercion.
LEGATEE
The person in whose favour a will is made is the legatee of that will.
The prerequisites of a legatee include being a human in existence, which also encompasses an unborn person in its mother’s womb.
A legatee can either accept or renounce the property in a will.
EXECUTOR
An executor is a person appointed by the testator of a will to execute the will in accordance with the contents and directions of the will. The court may assign an executor (also called as an ‘administrator’) in the absence of an appointment by the testator.
ESSENTIALS OF A VALID WASIYAT (WILL) UNDER MUSLIM LAW
A will to be valid has to be complied with certain prerequisites. These conditions shall deem a will to be valid and executable. The following are the essential conditions-
The testator must fulfil all the conditions to be competent to make a will.
The capacity and consent of the legatee must be present.
The legacy bequeathed must be a bequeathable property and be in existence at the time of making the will.
Free consent of the legator must exist at the time of the making of the will.
The legator must hold the ownership and testamentary rights of the property bequeathed.
WHO CAN MAKE A WASIYAT (WILL)
A valid will has a few conditions, among which the most significant and inevitable condition is the competence of the legator or testator. Without the testator’s legal capacity and competence, the validity of a will does not stand, rendering it null and void. A person fulfilling all these conditions is competent to make a will.
A MUSLIM
A wasiyat (will) under Muslim law shall be valid only if such will is made by a Muslim person. The laws related to will under Muslim law declare that only a Muslim person is eligible to make wasiyat. However, the legatee, that is, the one in whose favour the property is bequeathed, may be a non-Muslim person.
SOUND MIND
The principles of Mohammedan law state that the testator, while making a will, must be of sound mind and know the nature and consequences of his acts.
A MAJOR
A testator must have attained the age of majority while making a will. Generally, the age of majority under Muslim law is considered to be 15 years. However, this is not applicable in the case of wills in India. The age of majority of a Muslim person, with the exception regarding the matters of marriage, divorce, dower and adoption, is governed by The Indian Majority Act, 1875, which is 18 years.
According to Shia law, the majority of a legator is immaterial with regards to assessing the validity of a will, and a Muslim person who is 10 years old may also make a will. However, this stance was not supported by the Patna High Court in the case of Abdul Manan Khan vs. Mirtuza Khan And Ors. (1991), and established that a will declared by a minor is void.
LEGATOR’S DEATH BY SUICIDE
Under Shia law, a will made by a legator after his death by suicide is void.
The logic behind this principle is the instability of the mind and the incapability of rational thinking.
However, the court, in the case of Mazhar Hussain vs. Bodha Bibi (1898) 21 ALL 91 P.C, held that a will made by a person before the consumption of poison or doing any act towards the commission of suicide shall be valid.
It is to be noted that the onus of proving the invalidity of a will under this rule is upon the person alleging it.
There has been no such exception under Sunni law, and hence, the invalidity of will under this rule is not applicable under Sunni law.
WHO CAN TAKE PROPERTY UNDER A WILL
for a will to be valid, the competence of a legatee must also be present. Following are the points that determine a proper legatee–
PERSON IN EXISTENCE
A legatee has to be in existence to accept a will in his favour.
A will is made by a legator in favour of a legatee, for it to be executed after his death but during the lifetime of such legatee.
If a legator survives a legatee, under Shia law, such a legacy will lapse in the absence of legal heirs of the legatee. Meanwhile, under Sunni law, the bequeathed property shall be reverted to the legator.
Although, a will may be declared in the favour of an insane person, a minor or a non-Muslim person. It is important that a legatee is competent and in existence to hold the property.
The age, sex, caste, religion, gender and state of mind are immaterial for a legatee to be competent.
A will in favour of a charitable or educational institution is also valid and such institutions hold the competence to be a valid legatee.
UNBORN CHILD
A will to a child who is in the mother’s womb is valid, provided that the child must be in existence in the mother’s womb at the time of declaration of the will. The non-existence of the legatee at the time of declaration of will by the testator invalidates the will and makes it void ab-initio.
LEGATOR’S MURDERER
A will is a testamentary disposition and such a document is executed only after the death of the testator. Therefore, a situation may arise where someone attempts to take undue advantage of this arrangement, hence committing murder of the testator. A will in favour of such a person is void.
An unintentional death caused by a legatee of a legator would also invalidate the will. However, under Shia law, such causing of death does not hold the will to be invalid, provided that the legal heirs must have the consent to it. However, if such legatee is the sole owner, no consent would be required, and he shall be a valid legatee.
CONSENT OF LEGATEE
In the concept of will, the consent of both parties to it has to be mandatorily free. Therefore, the transferring of the ownership of the legacy to the legatee needs to be in alignment with the legatee’s consent. A legatee has a complete right to disclaim the will, and on such a disclaim, the bequeathed property shall not be transferred to the legatee. However, under Shia law, a legatee may accept a part of the bequest and may disclaim the remainder.
JOINT LEGATEE
A will may be declared in favour of more than one legatee, such legatee are known as Joint legatee. There may arise two circumstances under the notion of joint legatee. Firstly, where the share is specified and secondly, where the share is unspecified.
WHERE THE SHARE IS SPECIFIED
In a will where the shares are specified expressly by the legator, the property to be bequeathed must be distributed in accordance with the share specified.
For example, if a testator creates a will in favour of his three sons, specifying that the distribution ratio among them should be 3:2:1 for S1, S2, and S3, respectively, the property will be divided among the three sons according to the ratio set by the testator.
WHERE THE SHARE IS NOT SPECIFIED
If, in a will, no share is specified by the testator, the property bequeathed must be distributed equally among the legatees. When a will is declared in favour of a class of persons, such class shall be treated as a single legatee only as against another class of people.
FORMALITIES OF A WASIYAT (WILL) UNDER MUSLIM LAW
ORAL WILL
A will may be declared orally by simply uttering words like “I, now bequeath this property in the name of ‘X’ after my death”. A mere announcement of making a will validates the will.
Although, the burden of proof of the valid existence of such a will may be hefty. Ultimately, an oral will has to be proved with extreme fidelity with precision in date, time and place.
WRITTEN WILL
A written will does not require to follow any specifically prescribed form.
An unambiguous and clearly intended will shall be enough to validate such will.
A will stands valid even if it is not signed by the legator or attested by the witnesses.
In the case of Aulia Begum vs. Ala uddin (1906), the Allahabad High Court upheld the validity of the will, where it was not signed by the testatrix or attested by any witnesses. It expressed that a clear intention and prior direction of making such will shall constitute it to be valid.
WILL MADE ON DEATH-BED (‘MARZ-UL-MAUT’)
A will made by the testator on his death-bed, formally called as ‘Marz-ul-Maut’, is a valid will.
The limited testamentary powers of the testator apply here as well, which restricts him to bequest more than one-third of his property.
The bequest made under this case must be devoid (entirely lacking or free from) of any condition and followed by the death of the testator, or else such bequest will be invalid.
This was held in the case of Ibrahim Goolam Ariff vs. Saiboo (1907), where the property in question was held to be a valid gift rather than a will because the bequest was not followed by the death of the testator.
SUBJECT-MATTER OF A WILL
The subject matter of a will can be of any nature, whether corporeal or incorporeal, movable or immovable.
However, a testator has the power to bequeath his property by a will only after fulfilling the following conditions.
If the legator owns the property at the time of his death.
The property bequeathed must be transferable.
A property bequeathed in a will may not mandatorily be in existence at the time of making such will. However, a legator must hold the ownership of the legacy at the time of his death. The logic behind this rule is that a will has to come into operation after the death of the testator and not at the time of declaration of the will.
For example, ‘A’ declares a will bequeathing all his property to ‘B’. Suppose ‘A’ owns a house at the time of execution of the will, but at the time of his death, he owns a car as well. Thus, ‘B’ shall be entitled to have the house as well as the car under the will.
LIMITATION AS REGARDS TO THE EXTENT OF PROPERTY TO BE BEQUEATHED
A Muslim person is permitted to execute a will only to the extent of one-third of his estate after deducting from it all the debts and funeral expenses.
If a testator intends to bequeath beyond one-third of his estate to a legatee (whether heir or a non-heir), he has to obtain prior consent from his heirs.
Thus the bequest shall be valid only up to the extent of one-third of the property of the legator, and the remaining shall be distributed through inheritance.
The consent of the heirs need not be expressed but can also be drawn by their unambiguous and clear conduct.
In the case of Daulatram vs. Abdul Kayam (1902), the testator bequeaths his whole property to a stranger, and such will is attested by the legator’s two sons.
After the death of the testator, the legatee started to take possession of the bequeathed property and also received rents. While all this happened in the knowledge of the testator’s sons, it is said that they consented implicitly, as they did not raise any objection.
LIMITATIONS CONCERNING THE LEGATEE
The second restriction arises when the legatee is one of the heirs of the legator.
Under this limitation, it is immaterial whether the property bequeathed is one-third or less, and the consent of the other legal heirs becomes a dominant factor in establishing a valid will.
In the case of several heirs, consent by one heir shall not be deemed to be consent by the rest of the heirs. This was held by the Kerala High Court in the case of Mohammed Haneefa vs. Salim (2011). rationale behind this rule is to prevent a testator from preferring one legal heir over others, which could lead to resentment and hostility among the remaining heirs.
On the other hand, Shia (Ithna-Ashari) law doesn’t discriminate between an heir or a non-heir.
A will bequeathed in favour of any person or purpose till the extent of one-third of the legator’s estate is treated to be valid.
CONSTRUCTION OF A WASIYAT (WILL) UNDER MUSLIM LAW
According to the general rules, a will has to be made in accordance with the customary rules followed under Muslim law and the usage of non-technical and unambiguous language.
A will is a testamentary document which comes into operation after the death of the testator of the will. Therefore, a will made by the testator must be interpreted according to his intentions expressed in the instruction of the will.
For example, a legator in his will bequeath a house and a shop to two of his sons without specifying the individual ownership of the properties. Here, the content of the will is mystified, leaving the legatees in dilemma. Thus leaving the heirs to mutually agree upon the division of the property bequeathed in the will.
REVOCATION OF A WASIYAT (WILL) UNDER MUSLIM LAW
A Muslim person has the entitlement to revoke a will made by him. He may revoke a will either by expressing it in words or, impliedly, through his actions.
EXCEPTION TO THE RULE OF WASIYAT
There are certain exceptions to the general rules of wasiyat.
Those are the limited testamentary powers of a testator and the mandatory consent of legal heirs.
Both under Sunni law and Shia law, the testamentary powers of a Muslim person are restricted to one-third of his property after deducting the debt amount and funeral expenses.
