CONCEPT OF WILL UNDER THE MUSLIM LAW

Author- Anshika Sharma

There are various ways by which the property can be disposed of in Muslim Law as well as in Hindu Law. By creating a wakf or by accessing the testamentary powers a Muslim can dispose off his property as a gift. A bargain between two different propensities under Islamic Law is termed a Will. According to the Prophet the death of a person, the property needs to be distributed amongst the person heirs and this is a divine law under the Islamic Law and any interference with this law is unacceptable.

Meaning & Nature of Will

A Will comes into effect only after the death of a person which enables a person to dispose off his or her property. A will is therefore a legal declaration of transferring the property by a person to their heirs. A Will is executed under Islam Law by a Muslim known as Wasiyat. Legator or Testator is a person who executes the Will and the legatee is the person in whose favour the Will is made. Ameer Ali, one of the famous Muslim scholars has defined Will from the point of view of Mussalman as a divine institution because its exercise is regulated by the Holy Quran. At the same time, Prophet had proclaimed that such testamentary powers must not exert any damage to the lawful heirs.

The validity of the Will is strictly governed by a rule in Islamic Law which states that a Will can be made in favour of anyone, but only to the extent of one-third of the property of that person. If it exceeds the one-third proportion, then the consent of the legal heirs is necessary no matter in whose favour the Will is being executed. It can be hypothesized that a Will is a kind of gratuitous transfer of ownership made through a testamentary document that comes into play after the death of the legator. As far as the legal concept of Will is concerned, basically, it is a gift testamentary.  

Essentials For A Valid Will

To make a Will apt and capable of taking into effect there are certain requisites which talks about the legal validity of the Will. They are as follows:

  • To make a Will the Legator must be competent
  • To take such endowment the legatee must be capable
  • The property that is being endowed by the Legator must be bequeathable
  • Legator and legatee should give free consent
  • Testamentary rights over the property must be possessed by the Legator

Who can make a Will?

The competency of the Legator is the foremost requirement to constitute a valid Will. A legator is considered to be capable to make a Will if he holds the following discussed features:

  • The person must be a Muslim:

Under Islamic Law, a Will made only by a Muslim person is considered valid and authentic. If there is a case where a Muslim person has married under the Special Marriages Act, 1954, then the Will made is not governed by the Muslim Personal Law but by the Indian Succession Act, 1925. If a situation arises wherein the Legator at the time when the Will is made is a Muslim but later on denounced Islam and considered as a non-Muslim at the time of death, then the Will created by such a person is considered as valid under the Islamic Law. As there are two Muslim schools, the rules of that school is considered of which the Legator belongs to at the time of the declaration of the Bill. If he/she is a Sunni Muslim then the laws pertinent to that school are followed and the same is the case with the Shia Muslims.

  • Soundness of mind:

The Legator must be sane when the Will is being made. He must be competent and sound enough to understand his own actions and their legal consequences not only during that particular time period when the Will is being made but also sustain the same till his death. The Will can turn void if the Legator at the time of the execution of the Will is sane and of sound mind but turns insane later on and remains the same till his death. Also, the Will turns null and void when the Legator is of insane mind at the time of execution of the Will.

  • Age of Majority:

At the time of execution of the Will, the Legator must have attained the age of majority. In general, the age of majority is regulated by the Indian Majority Act, 1875 with marriage, divorce and dower as exceptions. The age of 18 is considered as the age of majority according to the Act and 21 years in the case where the person is under the supervision of the Court of Wards. Any will which has been executed by a minor is considered null and void.

  • Consent of the Legator:

The consent of the Legator is mandatory for the execution of the Will. If any Will has been executed under any pressure or coercion then that Will is considered as null and void and the legatee would not be entitled to get any property as per the Will. The free consent is generally presumed by the law unless proved. But in case of pardanashin lady, the free consent is not presumed and the legatee has to prove that the Will has been executed by the lady exercising her independent discretion.

Who can take property under a will?

Along with competency of the Legator one more essential for a Will to be valid is the competency of the Legatee as well. Following are the characteristics of the Legatee:

  • He must be a person in existence: The legatee must be living at the time of the death of the Legator in order to be competent to take the Will. A Will in favour of a non-Muslim, minor or an insane person can be declared by the Legator provided that he is in existence and is competent enough to hold the property. In order to become a lawful legatee the state of mind, gender, caste and religion is insignificant.
  • Child in mother’s womb: Under the Islamic Law, a child in the mother’s womb is a living person and thus is considered as a legal legatee under the Muslim Law. The first condition is that the child should be in existence in the mother’s womb at the time of declaration of the Will and second is that the child born should be alive within 10 months under the Shia Law and within 6 months under the Sunni Law.
  • Murderer of Legator: Only after the death of a legator does a Will come into effect which increases the possibility that an impatient and avaricious legatee might kill the legato in order get hold of all the property as soon as possible. The Will turns void if the legator makes an attempt to kill or kills the legator intentionally or unintentionally and thus the legatee is disentitled to take the property.

Subject Matter of The Will

The subject matter of the Will can constitute of any type of variety whether movable or immovable, corporeal or incorporeal. But only under two conditions can a legator bequest property in a Will:

  • The legator must own the property at the time of his death
  • And the property must be transferable.

 Thus, at the time of the death of the legator the property must be in possession of the legator even if the property was not in his possession when the declaration was made.

Principle Limitations on Testamentary Powers

There are some restrictions on the testamentary powers which come under the Muslim Law which are different from the general laws:

  • With respect to the extent of the property that can be bequeathed:

Only one third of the bequeathable property can be taken into consideration under a Will. If any bequest exceeds the limit of one-third then I is mandatory to take the consent of the legatee for a Will to be valid. If the heirs do not give their consent then the set limit of one third will be given to the heirs and the remaining two third would be transferred through interstate succession. If a Muslim does not have any heir then he might give it to any person he desires in whatsoever amount but in the presence of heir the consent of the heir is mandatory.

  • To whom the property is given amongst the legatees:

The second restriction comes into play when one of the heir of the legator is the legatee. The consent of the heirs of the legator plays a dominant role in order to establish a valid Will when the property bequeathed is one-third or less. A feeling of jeaolousy and enimity might creep in amongst the other heirs when the legator makes a bequest in favour of one of the heirs which would give more precedence to him.

  • Revocation of the Will:

According to the Islamic Law, a Legator is provided an emancipated right which allows him to revoke the Will or any part of the Will which was executed by him at any point of time. A Will can be revoked either by expressing it or implying it.

  • Abatement of Legacies:

When the heirs deny to give their consent when the bequeath exceeds the limit of one third. the ratio of the legatees is subsidised in order to maintain the rule of bequeathable one-third. This reduction in the legacy s termed as abatement of legacies.

Conclusion

Thus, in conclusion we can say that a Will is the transfer of the property from the Legator to the legatee upon the death of the legator in a gratuitous manner. Also it has been believed that it helps some other relatives of the family to obtain a share in the property of the family who were initially excluded from inheritance. A person can devolve his own property  upon another person but also tends to maintain a rational balance between the law of inheritance and the devolution of his property.

Author Anshika Sharma is a second-year law student from ILS LAW COLLEGE, PUNE.