Will 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 of enabling some of those relations who are excluded from inheritance to obtain a share in his goods and or recognizing the services rendered unto him by a stranger or the devotion to him in his last moments. At the same time the Prophet had declared that the power should not be exercised to the injury of the lawful heir. A will is also referred to as a Wasiyat.
A will made by a Muslim is governed by the Muslim Law i.e. the law of the school to which the deceased belonged at the time of his death subject to the provisions of the Indian Succession Act, 1925. However, if a Muslim is married under the Special Marriage Act, 1954 the provisions of the Indian Succession Act 1925, shall be applicable even though the will was made before or after the marriage.
There are two types of Will: –
- Oral Will
- Written Will
In the case of an Oral Will, no specific number or class of witnesses is necessary for the validity of a will. However the following conditions need to be satisfied:
- Legator’s intention to make a will must be proved beyond doubt.
- The terms of the will of the Testator must be proved.
- Will must be proved with the greatest possible exactness.
Requisites of a valid Will
- The testator must be competent of making a will.
- The subject property of the bequest must be valid and the testator must possess testamentary right over such property.
- The bequest of the subject matter must be made encompassing the restrictions placed by the law
- Free Consent of the legatee and the legator.
Capacity to make a Will
Any Muslim who has attained the age of majority i.e. 18 years (or on completion of 21 years, if he is under supervision of Courts of Wards) and is of a sound mind can make a Will directing the disposal of his property after his death.
Under the Shia law, if a will is executed by a person who has attempted to commit suicide, then such a will shall be held void. However, under the Sunni law, attempt to suicide by executor of the will shall not affect the validity of such will.
Testamentary Right of the legatee on the Subject Matter
Any type of property, corporeal or incorporeal, moveable or immovable, can constitute the subject matter of the Will. A legator can only execute a will with regard to the subject property if he is the owner of such property at the time of his death and such property is transferable. The subject matter of the will
Restrictions on the Testamentary Powers of a Muslim
Under the Muslim Law, certain restrictions are placed to regulate the process of execution of a will by legato. The restrictions are with respect to the:
- Extent of the property, which can be bequeathed.
Any Muslim may direct disposal of his property by way of a will but, the testamentary right of the legator are restricted to the extent of one-third of the bequeathable property. The assets left for disposal shall be after payment of the funeral expenses, debts, etc.
Under the Shia law, transfer of over one-third of the property to a person who is a non – heir is void. Whereas, under the Sunni law, transfer of property over one-third shall become valid if the heirs 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.
- Legatee to whom the property is to be transferred
When the legatee is one of the heirs of the legato only then this restriction comes into operation. 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. Generally, once a legatee has accepted or rejected a bequest he cannot change his mind subsequently.
A bequest of any property by the testator in favour of heirs without the consent of other heirs is invalid.[1]
On the other hand, Shia law doesn’t discriminate between an heir and 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.
If a bequest is made to an heir and also to a stranger, the bequest with respect to the heir’s portion, even if it were less than a third, is not valid without the consent of the other heirs, while that which respects the portion of the stranger is valid without such consent, provided the portion bequeathed to him does not exceed one-third of the testator’s estate, otherwise the consent of the heirs is requisite to the validity of such bequest.[2]
Legatee must be competent to bequeath such property
A property may be bequeathed to any person capable of holding property (Muslim, non-Muslim who is not hostile towards Islam, insane, minor, a child in its mother’s womb, etc.) may be the legatee under a Will. Legatee (including a child in its mother’s womb) must be in existence at the time of making of the Will. Thus, a bequest to a person unborn person is void.
However, a child in its mother’s womb may be treated competent to become a legatee provided the two conditions are satisfied. Firstly, he must be in existence in the mother’s womb at the time of making of such will. Secondly, the child must be born within six months or ten months of execution of the will under Sunni and Shai law respectively.
Under the Sunni Law, if the will is in favour of a person, who is responsible for the murder or causing death of the legator, then such a will be held invalid irrespective of whether the murder was cause accidentally or intentionally. It is also immaterial if he knew about being a beneficiary in the will. However, under Shia Law, the legatee will be incompetent to receive the benefits only if the murder was caused intentionally.
Free consent of the Legator and the Legatee
Any person who executes (legator) a will in favor of a person (legatee) under Islamic law, must carry out such an act with free will and consent. Also, the same principle will apply on the Legatee while accepting a will by giving his consent. The consent so given or obtained shall be free from any undue-influence, coercion etc.
Abatement of legacies
Whenever any Muslim testator executes a will in favour of a legatee in excess of one-third of such property then it shall become valid only if the heirs of such a testator give their consent. In this scenario, the entire will shall not become inoperative or invalid but abates proportionately and is valid to the extent of one-third of the property.
Revocation of a Will
The testator may revoke his will at any time before his or her death either expressly or impliedly.
The express revocation may be either oral or in writing. The revocation of a will is possible till the last minute of the testator’s life.
The will can be revoked impliedly by testator transferring or destroying completely altering the subject matter of the will or bygiving the same property to someone else by another will
By
Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Email id: vpdalmia@gmail.com vpdalmia@vaishlaw.com
Mobile No.: +91 9810081079
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[1] Ghulam Mohammad Vs. Ghulam Husain and Ors. [MANU/PR/0073/1931]
[2] Muhammad Junaid vs. Aulia Bibi and Ors. [MANU/UP/0054/1920]