Will-Wasiyat under Islamic law
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The document provides a comprehensive overview of the concept of 'wasiyat' (will) in Muslim law, defining it as a legal instrument for property disposition after death that must adhere to specific regulations. It differentiates between wills and gifts, especially those made during serious illness, and outlines the qualifications necessary for valid wills, including the testator's competency and the limitations placed on bequests. Furthermore, it discusses consent requirements, the revocation of wills, and the rights of heirs within the context of property inheritance and distribution.
Will-Wasiyat under Islamic law
- 1. WILL -WASIYAT -SHIVANI SHARMA -ASSISTANT PROFESSOR -SARDAR PATEL SUBHARTI INSTITUTE OF LAW
- 2. WHAT IS WASIYAT? Will is the Anglo-Mohammedan term for its Arabic equivalent wasiyat. Concept of will under Muslim Law A Will or Testament or Wasiyat has been defined as “an instrument by which a person makes disposition of his property to take effect after his death.” The distinguishing feature of a Will is that it becomes effective after the death of the testator and it is revocable. Unlike any other disposition (e.g. sale or gift), the testator exercises full control over the property bequeathed till he is alive: the legatee or beneficiary under the Will cannot interfere in any manner whatsoever in the legator's power of enjoyment of the property including its disposal or transfer
- 3. OBJECT AND SIGNIFICANCE OFWILLS The object of Wills according to the tradition of the Prophet is to provide for the maintenance of members of family and other relatives where they cannot be properly provided for by the law of inheritance. At the same time the prophet has declared that the power should not be exercised to the injury of the lawful heirs. A bequest in favour of an heir would be an injury to the other heirs as it would reduce their shares and would consequently induce a breach of the ties of kindred. Thus the policy of the Muslim law is to permit a man to give away the whole of his property by gift inter vivos, but to prevent him, except for one third of his estate, from interfering by Will with the course of the devolution of property according to the laws of inheritance. A Will offers to the testator the means of correcting to a certain extent the law of succession, and enabling some of those relatives who are excluded from inheritance to obtain a share in his property, and recognizing the services rendered to him by a stranger.
- 4. DIFFERENCE BETWEEN HIBAAND WASIYAT Generally the trend among Muslims earlier was not to make a will or ‘Wasiyat’. Hence Islamic law thought it prudent to lay down a set of laws regarding disposal of property when a Muslim was on his death bed. This is referred to as Marz-ul- Maut. Gift during Marz-ul-Maut is one form of testamentary succession. Gift during Marz-ul-Maut means gift on the death bed. When a person is very seriously ill and on the apprehension of death and he makes a gift at that time, then it will be a gift during Marz-ul-Maut. Gift on the death bed is a hybrid of 'hiba' or gift and will. It includes some essential elements of will and some essential elements of gift. Therefore we can say that, it would also be open to a Muslim to transfer his entire property during his lifetime by way of a gift to any person, unless the gift is a marz ul maut gift.
- 6. TESTATOR/ LEGATOR Every major Muslim (above 18 years) of sound mind can make aWill. The age of majority is governed by the Indian Majority Act, 1875, under which, a person attains majority on completion of 18 years AND 21 years in case of wards At the time of execution of a Will (i.e. when it is being made), the testator must be of sound mind. Under Muslim law, the legator must have a perfectly ‘disposing mind’ i.e. the legator must be capable of knowing fully the legal consequences of his activities not only for a brief period when the declaration was made, but much after that.
- 7. CONT.. A Will that is executed in apprehension of death is valid, but under the Shia law, if a person executes any Will after attempting to commit suicide, the Will is void. A minor is incompetent to make a Will (such a Will is void) but a Will made by minor may subsequently be validated by his ratification on attaining majority. A Will procured by undue influence, coercion or fraud is not valid, and the court takes great care in admitting the Will of a pardanashin lady. Thus, a Will must be executed by a legator with his free consent. The legator must be a Muslim “at the time of making or execution of theWill.” .
- 8. CONT.. A Will operates only after the death of the legator; before his death, it is simply a mere declaration on the basis of which the legatee may get the property in future. Also, the Will is governed by the rules of that school of Muslim law to which the legator belonged at the time of execution of the Will. For example, if the legator was a Shia Muslim at the time when he wrote the Will, only Shia law of Will is made applicable
- 9. LEGATEE/ TESTATRIX Any person capable of holding property (Muslim, non-Muslim, insane, minor, a child in its mother's womb, etc.) may be the legatee under a Will. Thus, sex, age, creed or religion is no bar to the taking of a bequest. 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. A bequest may be validly made for the benefit of ‘juristic person’ or an institution (but it should not be an institution that promotes a religion other than the Muslim religion viz. Hindu temple,Christian church etc.)
- 10. CONT.. No one can be made the beneficial owner of shares against his will. Therefore, the title to the subject of bequest can only be completed with the express or implied consent of the legatee after the death of the testator. The legatee has the right to disclaim. A person who has caused the death of the legator cannot be a competent legatee. A Will operates only after the death of a legator, therefore, a greedy and impatient legatee may cause the legator's death to get properties immediately. However, it is also immaterial whether the legatee knew about him being a beneficiary under theWill or not.
- 11. SUBJECT OF WILL THE PROPERTY MUST BE CAPABLE OFTRANSFER THE PROPERTY MUST BE IN EXISTANCE THE TESTATOR MUST BE THE OWNER OFTHE PROPERTY
- 12. EXTENT A Muslim does not possess an unlimited power of making disposition byWill. There are two-fold restrictions on the power of a Muslim to dispose of his property by Will, which are in respect of the person in whose favour the bequest is made, and as to the extent to which he can dispose of his property. This is obvious, because the object behind this restriction is to protect the interests of the testator’s heirs.
- 13. CONT.. A bequest of entire property to one heir to the exclusion of other heirs is void -Husaini Begum V. Mohd. Mehdi Where the heirs refuse to give their consent, the bequest would be valid only to the extent of one-third of the property and the rest of the two-thirds would go by intestate succession. # No Muslim can make a bequest of more than one- third of his net assets after payment of funeral charges and debts. # In respect of bequest of one-third to an heir, the consent of other heirs is required in Sunni law, but not in Shia law. In case of a non-heir (stranger) the consent of heirs is not required in both.
- 14. CONT.. # The above rule of bequeathable one-third will not apply to a case where the testator has no heir. The right of Government to take the estate of an heirless person will not, in any way, restrict the right of a person to make a disposition of his property as he likes. Thus Government is no heir to an heirless person. # A bequest made for pious purposes is valid to the extent of one-third of the property, both under Sunni as well as Shia law. # The ‘1/3rd limit’ rule will not apply if a Muslim marries under the Special Marriage Act, 1954, because then he has all the powers of a testator under the Indian Succession Act, 1925.
- 15. CONSENT NO CONSENT IS REQUIRED FOR BEQUESTING 1/3 PROPERTYTO STRANGER CONSENT OF HEIRS IS REQUIRED IN BEQUESTING 1/3 PROPERTYTO ONE HEIR CONSENT IS REQUIRED TO BEQUEST MORE THAN 1/3 PROPERTYTO ANYONE BEQUEST OF WHOLE PROPERTY IS ALWAYS VOID NO CONSENT WHATSOEVER IF PERSON MARRIED UNDER SPECIAL MARRIAGE ACT.
- 16. REVOCATION OF WILL Muslim law confers on a testator unfettered right to revoke his will. A Muslim testator may revoke, during his life-time, any Will made by him expressly or impliedly. Thus, if he sells, makes gift of the subject of bequest or deals with the same in any other manner like constructing a house on the piece of land bequeathed earlier, would implied revocation. For example, where the testator gives land to his friend under a Will but a year later gifts the same to his daughter, the bequest in favour of the friend is automatically revoked.
- 17. CONT.. Where a testator makes a Will, and by a subsequent Will gives the same property to someone else, the prior bequest is revoked. But a subsequent bequest to another person in the same Will does not operate as a revocation of prior bequest, and the property will be divided between the two legatees in equal shares. It is not necessary that for revoking an earlier will, another will must be made. A Will can be revoked by a simple and clear declaration to that effect or by a formal deed of cancellation or revocation ofWill.