The Concept of Muslim Will:
Introduction:
When a person dies his/her property devolves upon his/her heirs. A person may die with or without a will (Testament).
Intestate:- When a person dies without the will or intestate, then his property divides according to the rules of intestate succession among his heirs.
Definitions:
Will or Wasiyat or Wasiyat Nama, means bequeathing or gifting of the property after the death of a person.
Legacy – Legacy is the subject of the will.
Legatee (Al-Musa Lahu) – the person in whose favor the will is made or created.
The testator (Al-musi): – The person who makes or creates the will.
The executor or the ‘wasi’:- the person who appointed to carry the will into execution after the testator’s death. The testator appoints the executor.
Will under Muslim Law:
Will is considered as the Primary Instrument for Muslim Testamentary Succession. Under Muslim law, the concept of making a will is a desirable and virtuous act. According to a Muslim, a will is a Divine institution and regulated by the Quran.
Section 3 of the Indian Succession Act, 1925:- “A Will is the Legal Declaration of the intention of a testator, with respect to his property which he desires to be carried into effect after his death’’.The will takes effect after the death of the testator or the person who is making at and will be revoked by the maker, at any time, before his death.
Applicability of Indian Succession Act, 1925:
The provisions of ISA, 1925 are not applicable to the Muslim law of will. However, a Muslim cannot claim immunity if his marriage was held under the Special Marriage Act, 1954, in such cases, the Indian Succession Act, 1935, shall be applicable, even though the will was made after or before the marriage.
Difference between Sunni law of Will and Shia law of Will:
A bequest to an heir:
a. Sunni law : Consent of other heir is necessary for the validity of a will.
b. Shia law: When the distribution exceeds the 1/3 rd pf the property then the consent of the other heirs is necessary.
A bequest to a child in the womb :
a. Sunni law : A bequest to a child in the womb is valid if born within 6 months.
b. Shia law: It is valid if the child is born within 10 lunar months of the gestation period.
A bequest to the Murderer :
a. Sunni law:- Accidental death leads to dis entitlement of the property. It would be an invalid transfer.
b. Shia law:- Only an Intentional Murder has disentitled the legatee.
Acceptance of Legacy:
a. Sunni law: Before the testator’s death, acceptance of legacy has no effect.
b. Shia law: One can accept the legacy during the lifetime of the testator.
If Legatee does not survive:
a. Sunni Law : If the legatee dies before the testator then the will revert back to the testator.
b. Shia Law: The legacy passes to the heirs of the legatee.