will under muslim law

AMITY LAW SCHOOL, LUCKNOW

‘WILL’ (WASIYAT)

Under Muslim Law

Submitted to: Prepared by:

Prof. L.N.Mathur Animesh Kumar

iB.A.LL.B.(H)

IV Semester

Enrl.No. A8108309035

Amity Law School, Lucknow 2011

i Will (Wasiyat) under Muslim Law| Family Law (Mohammedan Law) - II

ACKNOWLEDGMENT

This assignment is intended to cover the “WILL (Wasiyat)”. Basic and pre-

requisite information have been included.

I acknowledge the inspiration and blessing of my respected faculty Prof.

L.N.Mathur. He made my all doubt crystal clear.

I am full of gratitude to my seniors Pratik Mishra, Himanshu Priyadarshi,

Mayank Dubey and Wasiuddin Khan for the patience shown and

encouragement given to complete this assignment.

My heartful thanks are due to my friends Priyanshu Mishra, Priyesh Mishra,

Pallvi Anand, Prashant Kumar Singh, Purusharth Tolani, Shashank Singh, K.M.

Tripathi, P.S. Sridhar Raj and Manisha Chaturvedi for providing relevant

resources.

In the last but not the least, my sense of gratitude is due to AMITY LAW

SCHOOL, LUCKNOW.

Every effort has been made to avoid errors and mistakes, however their

presence cannot be ruled out.

Animesh Kumar


ii Will (Wasiyat) under Muslim Law| Family Law (Mohammedan Law) - II

Index

1. Introduction................................................................................................1

2. The importance of the Islamic will.............................................................1

3. The Will (Al-wasiyya).................................................................................2

4. The Testator (Al-musi)................................................................................2

5. The Legatee (Al-musa lahu).......................................................................3

6. Executor of the will (Al-wasi Al- mukhtar).................................................4

7. Essentials of a will......................................................................................5

8. Exception to the general rules....................................................................9

9. Bibliography.............................................................................................10


1 Will (Wasiyat) under Muslim Law| Family Law (Mohammedan Law) - II

Introduction

Will is the anglo-mohammedan term for its Arabic equivalent Wasiyat.

Generally wasiyat means ‘will’ but it has also other meanings. Will means the

legal declaration of the intention of a testator with respect to his property, which

he desires to take effect after his death. It may signify a moral exhortation,

specific legacy or the capacity of the executor, executorships. The Islamic will

is also called al-wasiyya. A will is a transaction which comes into operation

after the testator’s death. The will is executed after payment of funeral expenses

and any outstanding debts. The one who makes a will (wasiyya) is called a

testator (al-musi). The one on whose behalf a will is made is generally referred

to as a legatee (al-musa lahu). Technically speaking the term "testatee" is

perhaps a more accurate translation of al-musa lahu.

From this definition we get the following elements of will:

1. Will is a conferment of right to one’s property on another.

2. This conferment of right is to take effect after the death of the testator.

The importance of the Islamic will

The importance of the Islamic will (wasiyya) is clear from the following

two hadith:

"It is the duty of a Muslim who has anything to bequest not to let two nights

pass without writing a will about it." (Sahih al-Bukhari)

"A man may do good deeds for seventy years but if he acts unjustly when he

leaves his last testament, the wickedness of his deed will be sealed upon him,

and he will enter the Fire. If, (on the other hand), a man acts wickedly for

seventy years but is just in his last will and testament, the goodness of his deed

will be sealed upon him, and he will enter the Garden." (Ahmad and Ibn Majah)

The will gives the testator an opportunity to help someone (e.g. a relative need

such as an orphaned grandchild or a Christian widow) who is not entitled to

inherit from him. The will can be used to clarify the nature of joint accounts,

those living in commensality, appointment of guardian for one’s children and so

on. In countries where the intestate succession law is different from Islamic law

it becomes absolutely necessary to write a will.



The Will (Al-wasiyya)

The Islamic will includes bequests and legacies, instructions and

admonishments, and assignments of rights.

No specific wording is necessary for making a will. In Islamic law the will

(wasiyya) can be oral or written, and the intention of the testator must be clear

that thewasiyya is to be executed after his death. any expression which signifies

the intention of the testator is sufficient for the purpose of constituting a

bequest.

There should be two witnesses to the declaration of the wasiyya. A

written wasiyya where there are no witnesses to an oral declaration is valid if it

written in the known handwriting/signature of the testator according to Maliki

and Hanbali fiqh.

The wasiyya is executed after payment of debts and funeral expenses. the

majority view is that debts to Allah (SWT) such as zakh, obligatory expiation

etc. should be paid whether mentioned in the will or not. However, there is

difference of opinion on this matter amongst the Muslim jurists.

The Testator (Al-musi)

Every adult Muslim with reasoning ability has the legal capacity to make a will.

An adult for this purpose is someone who has reached puberty. Evidence of

puberty is menstruation in girls and night pollution (wet dreams) in boys. In the

absence of evidence, puberty is presumed at the completion of the age of fifteen

years. The Maliki and Hanbali fiqh also consider the will of a discerning

(tamyiz) child as valid.

Under English Law you must be at least 18 years of age to make a valid will

(similarly in most of the United States of America) unless you are a military

personnel in which case you may make a valid will at the age of 17.

The testator must have the legal capacity to dispose of whatever he bequests in

his will. When making a will the testator must be of sane mind, he must not be

under any compulsion and he must understand the nature and effect of his

testamentary act. The testator must of course own whatever he bequests.

The testator has the right to revoke his will by a subsequent will, actually or by

implication.

In traditional Sunni Islamic law the power of the testator is limited in two ways:



Firstly, he cannot bequest more than 1/3 of his net estate unless the other

heirs consent to the bequest or there are no legal heirs at all or the only

legal heir is the spouse who gets his/her legal share and the residue can be

bequeathed.

Narrated Sa‘d ibn Abi Waqqas (RA): "I was stricken by an ailment that

led me to the verge of death. The Prophet came to pay me a visit. I said,

"O Allah's Apostle! I have much property and no heir except my single

daughter. Shall I give two-thirds of my property in charity?" He said,

"No." I said, "Half of it?" He said, "No." I said, "One-third of it?" He

said, "You may do so, though one-third is also too much, for it is better

for you to leave your offspring wealthy than to leave them poor, asking

others for help..." (Sahih al-Bukhari, Sahah Muslim, Muwatta, Tirmidhi,

Abu Dawud and Ibn Majah.)

Secondly, the testator cannot make a bequest in favour of a legal heir

under traditional Sunni Muslim law. However, some Islamic countries do

allow a bequest in favour of a legal heir providing the bequest does not

exceed the bequeathable one-third.

Legal heir in this context is one who is a legal heir at the time of death of the

testator.

Narrated Abu Hurayrah (RA): Allah’s Prophet (SAWS) said, "Allah has

appointed for everyone who has a right what is due to him, and no bequest must

be made to an heir. (Abu Dawud). Similar hadith narrated by Abu Umamah

(RA) and reported by Ibn Majah, Ahmad and others.

The Legatee (Al-musa lahu)

Generally speaking, for a bequest to be valid, a legatee must be in existence at

the time of death of the testator except in the case of a general and continuing

legatee such as the poor, orphans etc.

The legatee must be capable of owning the bequest. any bequest made in favour

of any legal heir already entitled to a share is invalid under traditional Sunni

Muslim law unless consented to by other legal heirs. an acknowledgement of

debt in favour of a legal heir is valid.



Acceptance or rejection of a bequest by the legatee is only relevant after the

death of the testator and not before. Generally speaking once a legatee has

accepted or rejected a bequest he cannot change his mind subsequently.

If the legatee dies without accepting or rejecting the bequest, the bequest

becomes part of the legatee’s estate according to the Hanafi fiqh because non-

rejection is regarded as acceptance. According to the other three main

Sunni madhahib, the right to accept or reject the bequest passes onto the heirs of

the legatee.

There is difference of opinion as to the time at which ownership of a bequest is

transferred from the testator (or his heirs) to the legatee. According to the

Hanafi and Shafii fiqh the transfer of ownership is at the time of death of the

testator, according to the Maliki and Hanbali fiqh the transfer of ownership is at

the time of accepting the bequest.

All the Sunni madhahib agree that if the legatee dies before the testator, the

bequest is invalid since a bequest can only be accepted after the death of the

testator.

If there is uncertainty as to whether or not the legatee survived the testator, such

as a missing legatee, the bequest is invalid because the legatee must be alive at

the time of death of the testator for the will to be valid.

If the testator and legatee die together, such as in an air crash and it is not

certain who died first, the bequest is invalid according to the Hanafi, Maliki and

Shafiifiqh. But according to the Hanbali fiqh, the bequest devolves upon the

legatee’s heirs who may accept or reject it.

Executor of the will (Al-wasi Al- mukhtar)

The executor (al-wasi) of the will is the manager of the estate appointed by the

testator. The executor has to carry out the wishes of the testator according to

Islamic law, to watch the interests of the children and of the estate. The

authority of the executor should be specified. Hanafi and Maliki fiqh state that

the executor should be trustworthy and truthful; the Shafii fiqh state that the

executor must be just. The Hanafi fiqh considers the appointment of a non-

Muslim executor to be valid. The testator may appoint more than one executor,

male or female. The testator should state if each executor can act independently

of the other executor(s).

If one starts acting as an executor, one will be regarded as having accepted the

appointment, both in Islamic and in English law.



Essentials of a will - The following are the essentials of a will.

Legal declaration by the executants

The declaration by the executants of the will, must be legal viz. should be in

conformity with the provisions of the Indian Succession Act, 1925 and must be

by a person competent to make it.

Competency of person to make the will

Every person of sound mind not being a minor can execute a will. Persons who

are deaf, dumb or blind are not incapacitated for making a will, if they are able

to know what they do by it. A person who is ordinarily insane may make a will

during an interval in which he is of sound mind. No person can make a will,

while he is in such a state of mind, whether arising from intoxication or from

illness or from any other cause that he does not know what he is doing. The

testator should be capable of sound and disposing mind and memory.

The declaration should be relating to the testator's property and the testator

should intend to dispose off his property after his death. If the declaration is not

to take effect or if the testator wanted to carry out the intention made in the

declaration immediately, the instrument will not be a will, the will should be

revocable during the lifetime of the testator. If the instrument is intended to

come into effect with immediate effect and to be final and irrevocable, it will

not be a will.

Law relating to wills

The will made by any Hindu, Buddhist, Sikh or Jain is governed by the

provisions of Chapter VI of Indian Succession Act, 1925. However, the

provisions of the Indian Succession Act, 1925 are not applicable to

Mohammadans, who can dispose off the property by a will in accordance with

the Muslim Law. Under Muslim Law, the will executed by a Mohammadan is

not required to be probated.

Execution of will

Every testator, not being a soldier employed in an expedition or engaged in

actual warfare, or an airman so employed or engaged, or a mariner at sea, shall

execute his will according to the rules.

Signature of the testator on the will

The testator shall sign or shall affix his mark to the will or it shall be signed by

some other person in his presence and by his direction. The will should be

dated.



Attestation

'The will shall be attested by two or more witnesses. The attestation by the

witnesses should be by the signatures of the witnesses and not by their mark and

the attestation should be done after the testator has executed the will and not

before. The attesting witnesses need not know the contents of the will and the

testator need not disclose the nature or contents of the document.

Property, which can be, disposed off by Will

Any movable or immovable property can be disposed off by a will by its owner.

Under Mitakshara Law, a Hindu coparcener could not dispose off his undivided

coparcenary property by will, even if other coparceners consented to it. But

section 30 of Hindu Succession Act, 1956 provides that any Hindu may dispose

off by will or other testamentary disposition any property, which is capable of

being so, disposed of by him in accordance with law. The interest of a male

Hindu in a Mitakshara coparcenary property is deemed to be property capable

of being disposed off by him.

Who can be a devisee under a will

Any person capable of holding property can be a devisee under a will and

therefore a minor, lunatic, a corporation, a Hindu deity and other juristic person

can be a devisee. Sections 112 to 117 of Indian Succession Act, 1925 put some

restrictions on the disposition of property by will in certain cases. Dispositions

of property by will in some cases have been declared void.

Wills by Muslims

Under Muslim Law, every adult Muslim of sound mind can make a will. A

minor or a lunatic is not competent to execute a will. Though under Muslim

Law, a person gets the majority at the age of 15 years, but in India, the case of

will is governed by the Indian Majority Act according to which the minority

terminates at the age of 18 years, but if the guardian has been appointed by the

Court for the minor, the minority will terminate at the age of 21 years. The

legatee can be any person capable of holding property and bequest can be made

to non-Muslim, institution, and charitable purposes. A bequest can be made to

an unborn person and a will in favour of a child who is born within six months

of the date of making the will can be a legatee. But according to Shia Law, a

bequest to a child in the womb is valid, even if the child is in the longest period

of gestation i.e., ten lunar months. The property bequeathed must be capable of

being transferred and the testator should be the owner of the said property. The

property bequeathed should be in existence at the time of death of the testator,

even if it was not in existence at the time of execution of the will. A Muslim

cannot bequest his property in favour of his own heir, unless the other heirs

consent to the bequest after the death of the testator. The person should be legal

heir at the time of the death of the testator. However, under Shia Law, a testator



may bequest in favour of his heir so long as it does not exceed one third of his

estate and such bequest is valid even without the consent of other heirs. The

consent can be given before or after the death of the testator. But if the entire

estate is bequeathed to one heir excluding other heirs entirely from inheritance,

the bequest will be void in its entirety. According to Sunni Law, the consent by

the heirs should be given after the death of the testator and the consent given

during the lifetime of the testator is of no legal effect. Under Shia Law, the

consent by the heirs should be free and a consent given under undue influence

fraud, coercion or misrepresentation is no consent and the person who has given

such consent is not bound by such consent. The consent by the heirs can be

given either expressly or impliedly. If the heirs attest the will and acquiesce in

the legatee taking possession of the property bequeathed, this is considered as

sufficient consent. If the heirs do not question the will for a very long time and

the legatees take and enjoy the property, the conduct of heirs will amount to

consent. If some heirs give their consent, the shares of the consenting heirs will

be bound and the legacy in excess is payable out of the shares of the consenting

heirs. When the heir gives his consent to the bequest, he cannot rescind it later

on.

Principle of rate able abatement in case heirs does not give consent.

Under Hanafi Law, if a Mohammedan bequest of more than one?third of the

property and the heirs does not consent to the same, the shares are reduced

proportionately to bring it down to one?third. Bequests for pious purposes have

no precedence over secular purposes, and are decreased proportionately.

Bequests for pious purposes are classified into three categories:

1) Bequest for faraiz i.e. purposes expressly ordained in the Koran viz. hajj,

zakat and expiation for prayers missed by a Muslim.

2) Bequest for waji-bait i.e. purposes not expressly ordained in the Koran,

but which are proper viz. charity given for breaking rozas.

3) Bequest for nawafali i.e. purposes-deemed pious by the testator, viz.

bequest for constructing a mosque, inn for travellers or bequest to poor.

The bequests of the first category take precedence over bequests of the

second and the third category and bequests of the second category take

precedence over those of the third.

Under Shia Law, the principle of rate able abatement is not applicable and the

bequests made prior in date take priority over those later in date. But if the

bequest is made by the same will, the latter bequest would be a revocation of an

earlier bequest.



No writing necessary

Under Muslim law, a will may be made either orally or in writing and though in

writing, it does not require to be signed or attested. No particular form is

necessary for making a will, if the intention of the testator is sufficiently

ascertained. Though oral will is possible, the burden to establish an oral will is

very heavy and the will should be proved by the person who asserts it with

utmost precision and with every circumstance considering time and place.

But if the marriage of a Muslim has been held under Special Marriage Act,

1954, the provisions of Indian Succession Act, 1925 shall be applicable and he

cannot execute a will under Muslim law.

Revocation of will by a Muslim

The testator may revoke his will at any time either expressly or impliedly. The

express revocation may be either oral or in writing. The will can be revoked

impliedly by testator transferring or destroying completely altering the subject

matter of the will or by giving the same property to someone else by another

will.

Registration of wills

Though it is not necessary to register a will, but the Law recognizes a

Registered will when the execution of a will is disputed and when there is an

unregistered will. The provisions relating to registration of the will have been

given in sections 40 and 41 of the Indian Registration Act. The testator, after his

death, or any person claiming as executor or otherwise under a will, may

present it to any Registrar or Sub Registrar for registration. No time limit has

been prescribed for registering the will and a will may be presented for

registration at any time.' A will presented for registration by the testator may be

registered in the same manner as any other document. A will presented for

registration by any other person entitled to present it shall be registered, if the

registering officer is satisfied

a) that the will or authority was executed by the testator;

b) that the testator is dead; and

c) that the person presenting the will is entitled to present the same.

The registration of will is not the proof of the testamentary capacity of the

testator, as the Registrar is not required to make an enquiry about the capacity

of the testator except in case the testator appears to him to be a minor or an idiot

or lunatic.



Codicil

Codicil means an instrument made in relation to a will and explaining, altering

or adding to its dispositions and shall be deemed to form part of the will. The

codicil is generally made to make slight changes in the will, which has already

been executed. A codicil cannot alter a will more than what is necessary to carry

out the testator's intention as evidenced by the will and the codicil.

Codicil means an instrument made in relation to a will and explaining, altering

or adding to its dispositions and shall be deemed to form part of the will. The

codicil is generally made to make slight changes in the will, which has already

been executed. A codicil cannot alter a will more than what is necessary to carry

out the testator's intention as evidenced by the will and the codicil.

Exception to the general rules.- The following are two exceptions to the above

mentioned generals rules:

a) Under Hanafi law, a bequest or more than one-third of the net assets may

be valid, if the heirs, whose rights infringed thereby, give their consent to

the bequest after the death of the testator. In shia law such consent

validates the will whether given before or after the testator’s death

b) 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. In other words, Government is

no heir to an heirless person.



Bibliography

Books referred:

Mohammeden Law, Aqil Ahmad

Muslim Law, Paras Diwan

Websites referred:

www.islam101.com

www.legallight.in

www.legalaid.c.la

www.lawyersclubindia.com

http://www.islam101.com/

http://www.legallight.in/

http://www.legalaid.c.la/

will under muslim law

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