Will under Muslim Law embodies a harmonious balance between two distinct inclinations. The prophet’s perspective unequivocally asserts that upon a person’s demise, their possessions ought to be allocated among their rightful heirs, regarded as a divine decree, thereby rendering any deviation from this principle unacceptable. Also, it becomes the moral obligation of every Muslim to ensure suitable provisions are made for the disposition of their estate subsequent to their passing.
Meaning and Nature of Will under Muslim Law
Traditionally, a Will, also referred to as a ‘testament,’ is a legal instrument that empowers an individual to distribute their own property to designated beneficiaries upon their death. The execution of a Will under Muslim Law takes effect solely after the demise of the testator. Essentially, a Will serves as a formal declaration of property transfer to be carried out posthumously.
In the realm of Islamic law, a Will established by a Muslim is known as ‘Wasiyat.’ The individual executing the Will is referred to as the ‘legator’ or ‘testator,’ while the beneficiary named in the Will is known as the ‘legatee’ or ‘testatrix.’ A prominent Muslim scholar, Ameer Ali, defined a Will as a divine institution in terms of its regulation by the Holy Quran. Simultaneously, the Prophet emphasised that such testamentary powers must not cause harm to the rightful heirs.
Islamic law imposes a stringent rule that governs the validity of a Will. According to this rule, a Muslim can bequeath assets to anyone, but only up to one-third of their total property. If the Will exceeds one-third of the property, the consent of the legal heirs becomes mandatory, regardless of the intended beneficiary.
One can postulate that a Will represents a voluntary transfer of ownership facilitated through a testamentary document, which becomes operative upon the death of the testator. In terms of the legal concept, a Will essentially functions as a testamentary gift.
Essentials of a Valid Will under Muslim Law
When considering the legal validity of a Will under Muslim law, there are specific conditions that must be met for a Will to be deemed appropriate and enforceable. The following requirements need to be fulfilled:
- Competence of the legator: The person making the Will under Muslim Law must have the mental capacity and legal competence to create a Will.
- Capability of the legatee: The intended recipient of the bequest must be legally eligible to receive such an inheritance.
- Bequeathable property: The property being gifted by the legator must be capable of being legally bequeathed according to Islamic law.
- Consent of the legator and legatee: Both the legator and the legatee must provide their free and voluntary consent to the terms of the Will.
- Testamentary rights of the legator: The legator must possess the legal authority and ownership over the property being bequeathed.
Who can make a Will?
For a Will under Muslim Law to be considered valid, the competency of the legator is a fundamental requirement. The legator must possess the following characteristics:
According to Islamic law, a valid Will can only be made by a Muslim. If a legator is a Muslim at the time of creating the Will, it falls under the jurisdiction of Muslim Personal Law. However, if a Muslim individual has married under the Special Marriage Act, 1954, their Will is governed by the Indian Succession Act, 1925, rather than Muslim Personal Law.
Change in Religious Status
In certain cases, a legator may have been Muslim when they executed the Will but renounced Islam afterwards, thereby being recognised as a non-Muslim at the time of death. Such a Will created by a former Muslim is still considered valid under Muslim law.
School of Thought
Since there are different schools of thought within Islam, it is important to note that a Will is governed by the rules of the specific school to which the legator belongs at the time of declaring the Will. For example, if the legator is a Sunni Muslim when the Will is created, the Sunni Laws of Will apply.
Soundness of Mind
The legator must be of sound mind when making the Will. According to Muslim law, the legator must possess a clear and rational mind, fully understanding their actions and the legal consequences at the time of executing the Will. If a legator is of sound mind during the creation of the Will but later becomes insane until their death, the Will becomes void. Similarly, if the legator is already insane at the time of making the Will, it is considered null and void, even if they recover from insanity before passing away.
Age of Majority
The legator must have reached the age of majority when creating the Will. Under Muslim law, the age of majority is determined by the Indian Majority Act, 1875, with exceptions regarding marriage, dower and divorce. In general, the age of majority is 18 years or 21 years if the person is under the supervision of the Courts of Wards.
Any Will under Muslim Law executed by a minor is considered void. The validity of such a Will is suspended until the legator reaches the age of majority. Therefore, to create a valid Will, the legator must be 18 years or 21 years old, depending on the circumstances. Once the legator becomes a legal adult and ratifies the Will, it becomes valid.
Attempted Suicide by Legator
If a person who has attempted suicide executes a Will, it is considered void under Shia law. The rationale behind this rule is that an individual who has attempted suicide is presumed to be mentally unstable and disturbed and therefore not in a sound state of mind. For instance, if a person consumes poison or inflicts serious harm on themselves and then creates a Will before their death, that Will is declared null and void according to Shia law.
However, under Sunni law, a Will executed under such circumstances is considered completely valid. Both Shia and Sunni laws recognise the validity of a Will declared by a legator prior to an attempted suicide.
Consent of the Legator
When executing a Will, the legator’s free consent is essential. Any Will under Muslim Law found to be executed under coercion, undue influence or fraud is deemed null and void and the legatee is not entitled to any property under that Will.
Free consent is generally assumed by the law unless proven otherwise. However, in the case of a pardanashin lady (a secluded or veiled woman), free consent is not presumed and the legatee must provide evidence that the Will was executed by the lady while exercising her independent discretion.
Who Can Take Property under a Will under Muslim Law?
In addition to the competency of the legator, the competency of the legatee is another essential requirement for a valid Will. The following are the characteristics of a legatee who is capable of receiving a Will executed by a legator:
Person in Existence
A legatee must be alive at the time of the legator’s death. Since a Will under Muslim Law takes effect only after the legator’s death, the legatee must be a person who exists at that time.
A Will can be made in favor of a non-Muslim, a minor or an insane person. The important factor is that the legatee must be in existence and legally capable of holding the property. Age, sex, caste, religion, gender and mental state are not significant factors in becoming a lawful legatee. Charitable or religious institutions can also be valid legatees and any Will under Muslim Law in their favor is legally permissible.
Child in Mother’s Womb
A child in a mother’s womb is considered a living person and can be a competent legatee under Islamic law under two conditions. Firstly, the child must exist in the mother’s womb at the time of the Will’s declaration. Secondly, the child must be born alive within six months (under Sunni law) or ten months (under Shia law) from the date of Will’s execution.
Legatee as a Murderer
As a Will under Muslim Law only comes into effect after the legator’s death, there is a possibility that an avaricious and impatient legatee may cause the legator’s death to obtain the property quickly.
Generally, a legatee who intentionally or unintentionally causes the legator’s death is not allowed to inherit under the Will and is disqualified from receiving the property. However, under Shia law, if a legatee causes the legator’s death unintentionally, negligently or accidentally, they are still eligible to inherit the property and the Will is considered valid.
Consent of Legatee
Prior to transferring the legal title to the legatee under a Will, it is important to obtain the legatee’s consent to determine whether they wish to accept the Will or not. This consent can be expressed or implied. A legatee has the right to disclaim the Will under Muslim Law and refuse ownership of any property bequeathed to them. If a legatee declines to accept any property bestowed upon them, the Will is considered incomplete and invalid.
There are instances where a legator issues a Will jointly in favor of multiple legatees, referred to as joint legatees. A Will under Muslim Law can be made in favor of joint legatees in two ways:
If the legator explicitly specifies the share of each legatee in the Will, there is no ambiguity regarding the distribution of the property. The property will be divided according to the ratios mentioned by the legator and each legatee will receive their respective allotted share.
For example, if a legator creates a Will in favor of his three sons, stating that the distribution ratio should be 3:2:1 for S1, S2 and S3, respectively, the property will be distributed among the three sons in accordance with the specified ratios.
In some cases, the legator may not explicitly describe the share of each legatee. In such situations, the general rule is applied and the property is presumed to be divided equally among the legatees. When a Will under Muslim Law is made in favor of a class of individuals, that class is treated as a single legatee and each person within the class receives an equal portion of the property.
For instance, if a legator creates a Will stating that the property is to be given to a mosque and the poor people in the legator’s locality, half of the bequeathable property will be granted to the mosque, while the remaining half will under Muslim Law be distributed equally among the poor individuals in the locality.
What are the Modes of Execution of Will under Muslim Law
In Muslim law, there are no specific formalities prescribed for the execution of a Will. The intention of the legator holds significant importance in validating a Will and it must be clear, explicit and unequivocal.
A Will can be made orally, in writing or even through gestures.
A simple oral declaration can be considered a valid Will. There is no requirement to follow a particular process or formality to create a Will. However, proving an oral Will can be challenging as it must be corroborated with precise details of the date, time and place. The burden of proof is substantial in such cases.
A Will can be declared in writing without any specific form prescribed. It is not necessary for the legator to sign the Will or for it to be attested by witnesses. The name of the document is not crucial as long as it possesses the essential characteristics of a Will. If these requirements are met, the written document will be considered a valid Will under Muslim Law.
Will Made by Gestures
Under Islamic law, a Will can also be made through gestures. For example, if a sick person is unable to speak due to weakness but communicates their intentions through comprehensive nods of the head and subsequently passes away without regaining the ability to speak, the bequest made through gestures will be considered valid and lawful.
The Subject matter of a Will under Muslim Law
Any type of property, whether corporeal or incorporeal, movable or immovable, can be the subject matter of a Will under Islamic law. However, a legator can bequeath a property in a Will only if two conditions are met:
Ownership at the Time of Death
The legator must own the property at the time of their death. While the bequeathed property may or may not exist at the time of executing the Will, it is essential that the legator has ownership of the property at the time of their death.
This rule is based on the fact that a Will becomes operative after the legator’s death and the transfer of property to the legatee occurs from the date of the legator’s death, not from the date of executing the Will.
For example, let’s consider a scenario where ‘A’ executes a Will giving all their property to ‘B’. At the time of executing the Will, ‘A’ owns a house. However, at the time of ‘A’s death, they also own a car. In this case, ‘B’ is entitled to receive both the house and the car as per the provisions of the Will.
The property being bequeathed must be transferable. This means that the property should be capable of being transferred from the legator to the legatee as per Islamic law. The property should not be subject to any legal restrictions that prevent its transfer.
By fulfilling these conditions, a legator can include any eligible property in their Will, ensuring that it will be transferred to the designated legatee after their death.
Restrictions on Will
Under Islamic law, there are certain restrictions on the testamentary powers of a Muslim. These restrictions can be categorised into two types:
Limitation on Bequest Amount
A Muslim is allowed to make a Will for his property up to one-third of his bequeathable property. This one-third limit is calculated after deducting expenses such as debts and funeral costs. Any bequest exceeding the limit of one-third will not be effective unless the heirs of the legator give their consent to it. If the heirs do not consent, the bequest will be valid only to the extent of one-third and the remaining two-thirds will be distributed according to the rules of intestate succession.
However, if a Muslim does not have any legal heirs, he may bequeath his property to anyone and in any amount he desires, without being restricted to the one-third limit. But if a Muslim bequeaths his property to a non-heir or a stranger, the consent of the legal heirs is required if the bequest exceeds one-third of his total property.
These restrictions aim to protect the rights and interests of the legal heirs, which may be adversely affected by such bequests. If the heirs give their consent to bequeath the entire property to a stranger, the Will is valid; otherwise, it is valid only up to the limit of one-third.
Consent of Legal Heirs
The consent of the other legal heirs of the legator is significant when the legatee is one of the heirs of the legator, regardless of the bequest amount (whether it is one-third or less). This rule is in place to prevent feelings of jealousy and enmity among the heirs that may arise if one heir is given preferential treatment in the Will under Muslim Law.
In Shia law, there is no distinction between an heir and a non-heir. A bequest can be made in favor of anyone up to the extent of one-third of the property and it is considered valid.
Therefore, it can be concluded that Shia law provides more flexibility and power to make a Will compared to Sunni law, which imposes stricter restrictions on testamentary powers.
Revocation of a Will under Muslim Law
Under Islamic law, a legator has the right to revoke a Will or any part of the Will at any time. This right to revoke is considered an emancipated right of the legator. The revocation can be done expressly or impliedly.
Express revocation can be done through oral or written means. For example, if a legator bequeaths certain property to a person in a Will and subsequently creates a new Will bequeathing the same property to another person, the first Will is automatically revoked.
If the legator intentionally burns or tears the Will that was executed by him, it is also considered an express revocation. It’s important to note that mere denial of a Will is not sufficient to revoke it. There must be some action taken by the legator that clearly indicates his intention to revoke the Will.
Implied revocation occurs when the legator performs an act that is contrary to the bequest made in the Will, leading to the annihilation of the subject-matter of the bequest. For example, if a legator executes a Will bequeathing land to a person and subsequently builds a house on that land, sells the land or gifts it to someone else, the Will is considered to be impliedly revoked.
In both express and implied revocation, the legator’s clear intention to revoke the Will or the relevant part of the Will is essential. The revocation can be proven through the legator’s actions or declarations that demonstrate his intent to cancel or modify the bequests made in the Will.
Construction of a Will under Muslim Law
In Islamic law, the interpretation of a Will is based on the rules and principles outlined in Islamic jurisprudence. When a person creates a Will during their lifetime, it is meant to be enforced and implemented after their death. Therefore, the interpretation of a Will should aim to fulfill the intentions of the legator after their demise. However, there may be instances where the language used in the Will is unclear or the intentions of the legator are ambiguous.
In such cases, the responsibility of interpreting the Will is often entrusted to the heirs. They have the discretion to interpret and clarify the content of the Will in a manner that they collectively deem appropriate. For example, if a legator bequeaths a house and a shop to their two sons without specifying which property is assigned to each son, the heirs can mutually agree and decide how to distribute the properties among themselves.
This approach allows flexibility in the interpretation process, empowering the heirs to make decisions that align with the overall intent of the legator while considering the specific circumstances and needs of the family. It also promotes consensus and cooperation among the heirs in resolving any uncertainties or ambiguities present in the Will.
Abatement of Legacies
The abatement is a reduction in the legacies of the beneficiaries in order to maintain the rule of bequeathing only one-third of the property.
In Sunni law, the abatement of legacies is done in a rateable or proportionate manner. This means that each beneficiary’s share is reduced proportionally, according to the ratios specified in the Will, while maintaining the same distribution ratio among them.
In Shia law, the abatement is done preferentially. This means that the distribution is made in order of preference, based on the order in which the names of the legatees are mentioned in the Will. The first legatee mentioned receives their full share as specified, while the remaining property is passed on to the next legatee and so on. The distribution continues until one-third of the property is exhausted.
Distribution of Property under Will in Muslim Law
The distribution of property in accordance with the rules of abatement varies between Sunni and Shia law.
Under Sunni law, the principle of rateable distribution is applied when the bequeathable property exceeds one-third of the total property. In this method, if a legator bequeaths property to multiple beneficiaries in specific ratios, the abatement is done in the same ratio in which the property was initially distributed. Each beneficiary’s share is reduced proportionally, while maintaining the same ratio among them. This ensures a fair and proportional reduction of the shares.
On the other hand, according to Shia law, the principle of preferential distribution is followed. If the bequeathable property exceeds one-third and the heirs refuse to give consent for the excess, no reduction is made in the shares of the legatees. Instead, the distribution is made in order of preference, based on the order in which the names of the legatees are mentioned in the Will. The first legatee mentioned receives their full share as specified, while the remaining property is passed on to the next legatee and so on. The distribution continues until one-third of the property is exhausted. This means that a legatee either receives their full share or receives nothing.
It’s important to note that the rules of abatement and distribution may vary within different schools of Islamic law and specific circumstances and local customs may also influence their application. Consulting a knowledgeable Islamic scholar or legal expert familiar with the applicable laws and interpretations would provide more accurate guidance in individual cases.
Comparison of Sunni and Shia Law of Will under Muslim Law
|Basis for Comparison
|Bequest to an heir
|Invalid without consent of other heirs, even within one-third of property.
|Valid up to one-third of property, consent required for more than one-third.
|Time of Consent
|Consent of heirs must be given after the death of the legator.
|Consent can be given either before or after the death of the legator.
|Legatee causing the death of Legator
|Legatee cannot take property if they commit murder or cause the death of the legator.
|If the death is intentional, legatee cannot take the property, but if accidental or negligent, they can take the property.
|Suicide attempt by Legator
|Will is valid if legator commits suicide before or after executing the Will.
|Will is valid only if legator commits suicide after executing the Will.
|Child in Womb
|Bequest for unborn child valid if born within 6 months of making the Will.
|Bequest for unborn child valid if born within 10 months of making the Will.
|Abatement of Legacies
|Follows rule of rateable distribution.
|Follows rule of preferential distribution.
|Legatee dies before Legator
|Legacy reverts to the legator.
|Legacy lapses only if legatee dies without leaving an heir or if the legator revokes the Will.
A Will is indeed a legal instrument that grants the right to property to a designated beneficiary, which takes effect upon the death of the person making the Will (legator). It serves as a means for the legator to exert some control over the distribution of their assets, deviating from the strict laws of inheritance under Islamic law.
By creating a Will, a legator can include individuals who are not entitled to inherit under the rules of Islamic inheritance, thereby allowing them to receive a share of the property. This aspect of the Islamic law of Will provides an opportunity for the legator to rectify the distribution of their estate to some extent and accommodate their personal preferences.
While the Islamic law of Will allows for the devolution of property according to the legator’s choice, it also ensures a reasonable balance between the principles of inheritance and the testamentary disposition of property. This balance ensures that the rights of the legal heirs, as prescribed by Islamic law, are respected and upheld to a significant extent.
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