Introduction
Welcome to the official blog of the Law Offices of Kr. Vivek Tanwar Advocate and Associates, where we are dedicated to providing litigation support services for matters related to will under Muslim Law. In today’s blog post, we aim to shed light on the prevailing issues surrounding will, the legal framework in place for their protection, and the steps we can take as a society to combat these acts. Join us as we explore this critical subject and empower you with the knowledge to protect your rights and safety.
What Is Will?
In Islamic law, a Will is known as a “Wasiyyah” or “Testament.” It is a legal document that allows Muslims to express their wishes regarding the distribution of their property and assets after their death. The primary purpose of a Will in Islamic law is to ensure that the deceased’s wealth is distributed according to their desires, within the framework of Islamic inheritance laws.
Meaning And Nature Of Will
A Will, also known as a testament, allows a person to distribute their property after death. In Islamic law, a Will executed by a Muslim is called ‘Wasiyat’. The legator creates the Will, and the legatee receives the property. Islamic law restricts the Will to a maximum of one-third of the total property, requiring consent from legal heirs if it exceeds this limit. A Will is a form of gratuitous transfer of ownership that takes effect after the legator’s death, functioning as a testamentary gift.
However, there are certain restrictions and guidelines for creating a valid Islamic Will:
- Proportional distribution: A Muslim cannot completely deprive or favour any of their legal heirs through a Will. A maximum of one-third of the deceased’s estate can be bequeathed to non-heirs or used for charitable purposes.
- Clear witnesses: The Will must be witnessed by two competent Muslims who are not beneficiaries under the Will.
- Sincerity and sanity: The testator must be of sound mind and must create the Will voluntarily without any coercion.
- Revocable: A Muslim can amend or revoke their Will during their lifetime.
Essentials Of A Valid Will
For a Will to be legally valid under Muslim law, it must fulfil certain requisites, to ensure its effectiveness. The following requirements must be satisfied:
- Competence of the legator: The person making the Will (legator) must be of sound mind, mentally competent, and legally capable of making a Will.
- The capability of the legatee: The intended recipient of the bequest (legatee) must be legally eligible and capable of receiving the endowed property.
- Bequeathable property: The property being endowed by the legator must be capable of being bequeathed under Islamic law. Certain assets, such as those subject to mandatory inheritance rules, cannot be fully disposed of through a Will.
- Free consent: The legator must make the Will voluntarily, without any coercion or undue influence. The legatee must also accept the bequest willingly.
- Testamentary rights: The legator must have rightful ownership or authority over the property being bequeathed, allowing them to exercise their testamentary rights.
Who Can Make Will?
A Will can be created through oral, written, or even gestural means. For a valid Will, the legator’s competence is crucial. The legator is deemed capable of making a Will if they possess the following features.
He Must Be A Muslim
A valid Will under Islamic law is only considered authentic if made by a Muslim. If a Muslim marries under the Special Marriage Act, the Will is governed by the Indian Succession Act, not Muslim Personal Law. If a Muslim renounces Islam before their death, a Will made during their Muslim identity remains valid. The applicable school of Muslim law depends on the legator’s affiliation at the time of creating the Will (e.g., Sunni or Shia).
He Must Be Of Sound Mind
The legator must be of sound mind when making a Will. If a legator becomes insane and remains so until death, their Will is void. Likewise, if a legator is already insane when making a Will, it is null and void even if they recover later. A Will made during a lucid interval of insanity is valid if the insanity lasts less than 6 months. An insane person cannot validate a Will once they regain their sanity.
Age Of Majority
The legator must reach the age of majority when making a Will. In Muslim law, the age of majority is determined by the Indian Majority Act, of 1875. A minor’s Will is considered void, and its validity is suspended until the legator reaches a majority. To create a valid Will, the legator must be either 18 or 21 years old. Once the legator becomes a legal adult and confirms the Will, it becomes valid.
Attempt to suicide by Legator
Under Shia law, a Will made by someone who has attempted suicide is considered void due to the assumption of mental instability. If a person harms themselves and creates a Will before death, it is declared null and void. However, Sunni law recognizes the validity of a Will made in such circumstances. Both Shia and Sunni laws accept a Will made before a suicide attempt.
Consent of Legator
Free consent is essential when making a Will. If a legator is coerced, influenced, or deceived, the Will becomes null and void, and the legatee will not receive any property from it. Generally, the law assumes free consent unless proven otherwise. However, in the case of a pardanashin lady, free consent is not assumed, and the legatee must prove that the Will was made by the lady independently.
Who can take property under a Will?
A legatee must be alive at the time of the legator’s death to take a Will, as the Will only becomes effective after the legator’s demise. The legatee can be a non-Muslim, minor, insane person, or even a charitable or religious institution. The legatee’s age, sex, caste, religion, gender, and mental state are insignificant in determining their eligibility. Additionally, a child in a mother’s womb can be a competent legatee if they exist in the womb at the time of Will’s declaration and are born alive within the specified time frame. If a legatee intentionally or unintentionally causes the legator’s death, they are generally disqualified from taking the Will, except under Shia law where unintentional or accidental actions may still allow them to inherit. Before transferring the property, the legatee’s consent is crucial, as they have the right to accept or decline the Will. Joint legatees, who are named together in the Will, can be designated in two ways.
Revocation of a Will
A legator has the right to revoke a Will either explicitly or implicitly.
Comparison of Sunni and Shia Law of Will:
Sunni law and Shia law differ on various aspects concerning the concept of a Will. Here’s a concise table highlighting their points of distinction:
| Basis for Comparison | Sunni law | Shia law |
| A bequest to an heir | Invalid up to one-third without consent | Valid up to one-third, consent needed |
| Time of Consent | After the death of the legator | Before or after the death of legator |
| Legatee causing death | Disqualified if murder or intentional | Disqualified for intentional death |
| death of legator | Accidental/negligent death, valid | |
| Suicide attempt | Valid if before/after Will execution | Before or after the death of the legator |
| Child in Womb | Valid if born within 6 months | Valid if born within 10 months |
| Abatement of Legacies | Rateable distribution | Preferential distribution |
| Legatee dies first | Legacy reverts to legator | Legacy lapses without heir or revocation |
Conclusion
A Will grants property rights to a legatee, but the transfer is delayed until the legator’s death. It allows the legator to partially modify the succession laws and include relatives who are typically excluded. Islamic law permits individuals to distribute their property as per their preference while ensuring a balance between inheritance laws and the devolution of property through a Will.
We are a law firm in the name and style of Law Offices of Kr. Vivek Tanwar Advocate and Associates at Gurugram and Rewari. We are providing litigation support services for matters related to Muslim laws. We have a website on which we publish blogs informing the litigants about the said laws. Draft a blog which can be published on our website…..