Concept of Will (Wasiyat) under Muslim Law

 

 Q11 . What is a will? Who can make a will? What formalities are necessary for a valid will and in whose favour can it be made? What are the restrictions laid down by the Muslim Law on a person desiring to dispose of his property by will? When will can be revoked? What are the differences between Shia and Sunni Law regarding a will?

Ans. Meaning of Will.-A 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.' (Section 3, Indian Succession Act).

A Will is a declaration by the owner as to how his property is to be disposed of on his death. It takes effect only on death and may be revoked before death.

 

Wasiyyat means Will, whether oral or written. For Hanafi law, Hedaya and Fatwa-e-Alamgiri is the chief source of the law concerning Wills.

 Fatwa-e-Alamgiri defines Al Wasia, Wasiyyat thus:

 

"the conferment of a right of property in a specific thing or in a profit or advantage in the manner of gratuity to take effect on the death of a testator.:

 

According to Hedaya, the term wasiyyat denotes an endowment with the property or anything after death.

 

As per Baillee, to bequeath is in the language of the law to confer a right of property in a specific thing or in a profit or advantage in the manner of gratuity postponed till after the death of the testator.

Object of makings a Will.-The object of making a Will is well explained by Sautayra, a jurist quoted by Ameer Ali:

"Will from Mussulman's point of view is a divine institution since its exercise is regulated by the Koran. It offers to the testator the means of correcting to a certain extent the law of succession, and of 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. At the same time, the prophet has declared that the power should not be exercised to the injury of lawful heirs".

Who can make a will-Subject to the limitations on the testamentary powers, every Muslim who is -

 

(1) of sound mind, and

 

(ii) has attained majority under the Indian Majority Act (18 years, or if the guardian has been appointed of his person or property by the Court or he is under the supervision of Court of Wards, then 21 years). is capable of disposing of his property by will.

Will by a minor.- A testamentary disposition of property through a Will by a minor is subject to many controversial and divergent views among the Hanafi, Shia and Maliki Schools.

According to the Hanafi school of thought, a minor who has not attained the age of puberty is not competent to make a Will.

 

According to Hidaya, "Bequest by an infant is not valid. The reason is that a Will is a voluntary act concerning which an infant has no capacity of forming a proper judgment. Secondly, the declaration of an infant is not of a binding nature.

According to Hanafi Doctrine, a wasiyyat by a minor becomes effective ab initio upon his confirming and ratifying the same after attaining majority.

The Shia law declares that perfect intellect and freedom are indispensable to making a Will. The Shafis or Malikis generally agree with Shias;

 

Will by a lunatic-Such a will is void ab initio and cannot be validated by ratification. Similarly, if a person of sound mind becomes permanently of unsound mind after making bequest, the bequest will become invalid.

According to Bailee, "The testator must be sane at the time of making the Will. A Will made by a person who is insane at the time of making the Will, it will not become valid by his subsequent recovery and become sane.

 

The testator should be able to understand the consequences of his acts. The obligation entering into by idiots, lunatics and other person non compotes mentis is null and void but when a person afflicted by lunacy at lucid intervals and during such intervals would be valid subject to restrictions.

 

Will of an apostate.-The testator must be a Muslim at the time of making the will. According to Maliki School, apostacy annuls such a will but according to the Hanafis, the will would be effective if it is lawful according to the sect from which he has apostacized.

 Will of a person condemned to death.-Such a person cannot be deprived of the power of making a will

Will by an insolvent.-A person making a will should be solvent, if his liabilities exceed his assets, the bequest will not be effective unless the creditors discharge the estate from the payment of their debts.

 

Will of a person committing suicide.-Under Sunni Law such a will is valid. Under Shia Law such a will is not valid if it is made after he has done some act towards the commission of suicide. Where, however, a person made a will and then took poison, the will would be valid. [Mazhar Hussain v. Bodha Bibi, (1898) 21 All. 91 (P.C.)].

Will by a pardanashin woman: A Will by a pardanashin woman is valid if the incumbent on the propounder of Will satisfied the Court that the transaction was explained to the lady and that she knew what she was doing.

Formalities.-There are two conditions of a valid will. If

(i)                  intention to give, and

(ii)                  disposition to take effect, after the death of the testator are established, then no particular form is necessary for a valid will. Muslim Law does not prescribe any particular formality for the validity of a will. The only requirement is that there must be a manifestation of the intention to transfer the ownership of some of his properties to the legatee without consideration.

 

A will maybe

(i) oral, or

(ii) in writing.

 

The provision of the Indian Succession Act do not apply to Muslim wills.

Oral will.-If the will (Wasiyal) is made verbally, the intention of the testator must be conclusively proved. Thus, a person who cannot speak may make his will by signs and gestures. provided, the intention is conveyed clearly.

 

Written will.-A written will may be unattested or even unsigned, it will still be valid. In a case before the Privy Council, a letter written by a testator shortly before his death and containing directions as to the disposition of his property was held to constitute a valid will. [Mazhar Hussain v. Bodha Bibi [(1898) 21 All. 91 ( P .C)  But where a Muslim executed a document which stated, "I have no son, and I have adopted my nephew to succeed to my property and title" it was held to be invalid. [Jaswant Singhjee v. Jet Singhjee, (1844) 3 M.I.A. 245.]

Will by Gesture

Even a gesture, if the intention is sufficiently manifest, is enough. The Fatawa-e-Alamgiri says, "A sick man makes a bequest and being unable to speak from weakness gives a nod with his head and it is known that he comprehends what it is about if his meaning be understood and he dies without regaining the power of speech, the bequest is lawful.

In whose favour may a bequest be made?

 

A will may be made

 

(i) in favour of any person capable of holding property. However, under Sunni Law, bequest in favour of an heir is not valid. unless the other heirs consent to such bequest. In Shia Law, bequest of not more than one third of the net estate in favour of an heir is valid without the consent of other heirs, or

 

(ii) for the benefit of an institution, or

(iii) for a religious or charitable purpose.

 

Competence of legatee.-(1) He must be capable of holding property. In an old Indian case it was held that the legatee's existence at the time of the legator's death was enough.

(2) He must be in existence at the date of will either actually or presumably (that is within six months) of the making of the will.

(3) He must be alive at the date of the death of the testator.

 (4) There is no bar of sex, age, creed or religion of legatee.

 

Some particular cases.-1. A bequest to an unborn person can be made if born within 6 months of the will.

 

2. Legacy to the testator's murderer is void.

 

3. Legacy to an apostate is void.

 

4. Legacy for purposes not recognised by Mohammedan Law is void.

Limitations of a testamentary power of a Mohammedan

 

When the owner of property dies intestate his property devolves not on the heirs according to the scheme of inheritance, but on the legatees who take bequests under the Will. This would be so if the law does not impose any restrictions upon testamentary power. The Mohammedan Law imposed certain restrictions on the testamentary power in the interests of the heirs.

Mohammedan Law has not given unlimited testamentary powers to a Muslim. The limitation as regards the testamentary disposition of a Muslim are as follows:

 

i) There is a limit or restriction as to the extent of property:

 

ii) There is a limit or restriction as to the person to whom the bequest may be made.

Limitation as regards the person

This topic may be dealt with under the following heads:

(i) Bequest in favour of an heir.

(ii) Bequest in favour of an heir and a stranger.

(iii) Bequest to an unborn person.

(iv) Bequest to the testator's murderer.

 

(i) Bequest in favour of an heir.-General Rule of Sunni Law Bequest in favour of an heir is invalid unless the other heir's consent to it after the death of the testator. If the testator has no heirs, he may bequeath the whole of his property to a stranger. In Abdul Manan Khan v. Mirtuza Khan, (AIR 1991 Pat 155), the Court held that a bequest in favour of an heir is invalid unless the other heirs consent to it after the testator's death.

 

Justification of this rule.-The justification for this rule viz., a will in favour of an heir without the consent of other heirs is invalid, are three :

(a) It prevents a testator from interfering with or defeating the rules of inheritance.

(b) A bequest in favour of an heir to the exclusion of other heirs would be an injury to the latter and it would reduce their shares.

(c) It would, consequently, induce a breach of the ties of kindred. Such consent is to be given after the testator's death, under Sunni Law an heir has no interest in the property as long as the ancestor lives,

 

Who is an heir.-In determining whether a person is an heir or not, regard is to be had to the time of the testator's death and not to the time when the will is executed.

 

Illustration

 

A makes a will of his property to B, his brother. Subsequently, a son is born to A. The bequest is valid for though B was a presumptive heir at the time of the bequest but at the moment when A died, he was not an heir being excluded by the son.

 

Shia Law. (1) No consent of other heirs is required if the testator has left a legacy to an heir to the extent of one-third of his estate.

 

(2) Even for more than one-third it may be valid if the co-heirs consent either before or after the testator's death. (3) It is not necessary that the other heirs should give their consent after the death of the testator. Such consent may be given either before or after the death of the testator.

 

(ii) Bequest in favour of an heir and a stranger.-Under Sunni Law, the bequest is made to an heir and also to a stranger the bequest to the heir is invalid unless assented by other heirs, but the bequest to a stranger is valid to the extent of 1/3 of the estate.

 

A bequeaths 1/3 of his property to B, a stranger, and 2/3 to C. one of his heirs, the other heirs do not assent to the bequest to C The result is that B will take 1/3 under the will and the remaining 2/3 will be divided among all the heirs of A.

 

(iii) Bequest to an unborn person.-(1) A bequest to an unborn person is void under Sunni Law.

(2) It is valid if made to the child in the womb provided it is born within 6 months of the will.

 

Under Shia Law, a bequest to a child in the womb is valid if it is born in the longest period of gestation i.e. 10 months.

 

(iv) Bequest to testator's murderer.-A bequest to a person who causes the death of the testator, whether intentionally or accidentally is void under Sunni Law.

Under Shia Law, such bequest is void when the death of the testator was intentionally caused. If the death of the testator was caused accidentally such a will is not void.

2. Limitation as regards the property-Extent of the property that may be bequeathed.-A Muslim cannot dispose of more than 1/3 of his estate (that remains after payment of funeral expenses and debt). A will in favour of any non-heir legatee (stranger) is subject to the approval of heirs of testator if the property bequeathed exceeds the limit of 1/3 of the total assets.

We derive the following conclusions from the above :

Sunni Law

(i) Without the consent of the heirs.-Bequest of 1/3 may be made to a stranger without the consent of the heirs, and

(ii) With the consent of the heirs.-(1) Bequest of more than 1/3 to the strangers,

(2) Bequest of any portion to an heir.

 

If there is no heir, the property may be bequeathed to anybody to any extent.

 

Shia Law

 

(i)                  Bequest to the extent of one-third is valid, whether made in favour of an heir or non-heir without the consent of heirs,

 

 

(ii) Bequest of more than one-third is not valid in whosoever favour it is made unless the heirs consent to the bequest either during the life-time of the testator or after his death.

 

Revocation of wills.-A testator may at any time, before his death, revoke his will. The revocation may be

 

(a) (1) expressed verbally, (II) expressed in writing,

 

(b) implied, ie, by some act which shows an intention to revoke it. Some of the instances of implied revocation inter alia are

 

(1) A bequest of a piece of land is revoked, if the testator subsequently builds a house.

 

(II) A bequest of a house is revoked, if the testator sells it or makes a gift of it to another.

 

(c) A bequest stands revoked if the testator completely alters the nature of the property, eg, a piece of cloth by altering it into a garment.

 

Revocation by subsequent will.-If a subsequent will of the same property is made to another person, the former bequest stands revoked.

But the subsequent bequest of the same property to another person in the same will, does not operate as revocation of the pripr bequest and the property will be equally divided between the two legatees.