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.”
Tyabji defines Will as “conferment of right of property in a specific thing or in a profit or advantage or in a gratuity to take effect on the death of the testator.”
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 (in that case the Will becomes revoked).

Object and Significance of Wills

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.

REQUISITES OF VALID WASIYAT :

The essential requisites of a valid will, under Mohammedan Law are as follows:

1. The testator must be competent to make the will.

• Every major Muslim (above 18 years) of sound mind can make a Will.
• The age of majority is governed by the Indian Majority Act, 1875, under which, a person attains majority on completion of 18 years.
• 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.
• 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 must be executed by a legator with his free consent.
• The legator must be a Muslim “at the time of making or execution of the Will.” .
• 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.

     2. The legatee must be competent to take the legacy or bequest.

• 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.)
• 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 the Will or not.

    3. The subject of bequest must be a valid one.

• The Property Must Be Capable Of transfer
• The Property Must Be In Existence
• The Testator Must Be The Owner Of the Property

     4. The bequest must be within the limits imposed on the testamentary power of a Muslim.

• A Muslim does not possess an unlimited power of making disposition by Will.
• 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.
• 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.
• 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.