Will (Wasiyat) under Muslim Law – A comprehensive study

WILL-WASIYAT

 

According to Mohammedan Law, a ‘Will’ means Wasiyat. It can be in an oral or written form.

 

According to section 2(h) of the Indian Succession Act, “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”

 

According to Farman, “It is an instrument by which a person makes a disposition of his property to take effect after his demise and which is in its own nature ambulatory and revocable during his life”.

 

According to Ameer Ali, “A Will can signify a moral exhortation’, ‘a specific legacy, or the capacity of the executorship”. A document which embodies the Will of testator is called ‘Wasiyatnama’.

 

 According to M. Sautayra, “A Will from the Musalaman's point of view is a divine institution since its exercise is regulated by the Quran”.

 

According to 'Fatwa-i-Alamgiri", "A Will is the conferment of right of property in a specific thing or in a profit of advantage in the manner of gravity to the effect on the death of testator"

 

According to Bukhari, "A Muslim who possesses property should not sleep even for two nights unless he has made a written Will."

 

Essentials of a Will

 

1. The intention of the testator should be clear and unequivocal.

 

2. It must be enforceable after the death of testator.

 

3. The Will must be made by person of sound mind.

 

4. The testator should have attained the age of majority. A Will of a minor will be valid if he ratifies it after attaining majority.

 

5. According to Shia law the person, making a Will, should not have poisoned or wounded himself with a view to committing suicide.

 

6. The Will should not have been made under coercion or under influence or under fraud.

 

7. The Will of a "Pardanashin-woman' should have been carefully scrutinized by the court before admitting it finally.

 

The Will of a Muslim is governed by Muslim law. It is regulated by the provisions of testamentary succession as laid down in the Succession Act, 1925.

 

Object of makings a Will

 

The object of making a Will is well explained by Sautayra, a jurist quoted by Ameer Ali:

 

“Will from the Mussulman's point of view is a divine institution, since its exercise is regulated by the Koran. It offers to the testator the means of correcting to a certain extent the law of succession, and of enabling some of those relatives who are excluded from inheritance to obtain a share in his goods, and of recognizing the services rendered to him by a stranger, or the devotion to him in his last moments. At the same time the prophet has declared that the power should not be exercised to the injury of lawful heirs”.

 

Form of Will

 

It is one of the peculiar features of Mohammedan law that no particular form has been prescribed for making a Will by a Muslim. A Will can either be made verbally or in writing. In Mohammad Altaj v Ahmad Buksh, (1876) 25 WR 121 (PC), it was held that under the Mohammedan law no writing is required to make a will valid and no particular form even of the verbal declaration is necessary so long as the intention of the testator is sufficiently ascertained.

 

        Written Will. -In majority of cases for obvious reasons, the wills are made in a writing. The reason is that he who rests his title on so uncertain a foundation as the spoken words of a man since deceased is bound to allege, as well as, prove with the utmost precision the words on which he recites with every circumstance of time and place; Banco Beer Partap Maharajah Rajendra Pratap. 1867 ΜΙΑ 1 (28).

 

        A ‘will’, in a written form does not require any attention or any signatures. It will be valid even if it is not signed by testator. Only the intention of the testator should be reasonably clear so that the testament done by him may take effect fully. A letter written by the testator shortly before his death and containing a direction concerning the disposition of his property was considered to constitute a valid Will.

 

        Oral Will - A Muslim can make a will orally. In Venkat Rao v Namdeo, (1931) 581 A 362: 133 IC 711, it has been held that the burden of establishing an ‘oral-will’ is always a very heavy one, it must be proved with utmost precision and with every circumstance of time and place. What is necessary to prove the validity of a will is the intention of the testator, if it is reasonably sufficient. The intention even by gesture is enough.

 

        Revocation of bequeath - Muslim law permits a testator to revoke the will or any part of it at any time either expressly or impliedly. Normally, a testator is also free to make any addition to his will but if such addition makes the delivery of the subject-matter of will impossible, the bequeath shall stand revoked.

 

LIMITS OF TESTAMENTARY POWERS

 

The Mohammedan law which does not provide unlimited power to make a will restricts in two ways:

 

1. Limits as regards the person.

 

2. Limits as regards the property.

 

Limitation as regards the person

 

This topic may be dealt with under the following heads:

 

(1) Bequest in favour of an heir.

 

(ii) Bequest in favour of an heir and a stranger.

 

(ui) Bequest to an unborn person.

 

(iv) Bequest to the testator's murderer.

 

(i) Bequest in favour of an heir (Sunni Law) -

Bequest in favour of an heir is invalid unless the other heirs consent to it, after the death of testator. If the testator has no heirs, he may bequeath the whole of his property to a stranger

 

Justification of this rule - The justification for this rule viz. a will in favour of an heir without the consent of other heirs in invalid, are three

 

(a) it prevents a testator from interfering with or defeating the rules of inheritance,

 

(b) a bequest in favour of an heir to the exclusion of other heirs would be an injury to the latter and it would reduce their shares;

 

(c) it would, consequently, induce a breach of the ties of kindred.

 

         Such consent is to be given after the testator's death, for under Sunni law, an heir has an interest in the property as long as the ancestor lives.

 

Who is an heir - In determining whether a person is an heir or not, regard is to be had to the time of the testators death and not to the time when the will is executed.

 

Illustration

 

       A makes a will of his property to B, his brother. Subsequently, a son is born to A. The bequest is invalid for though was a presumptive heir at the time of bequest but at the moment when A died, he was not an heir being excluded by the son.

 

Bequest in favour of an heir (Shia Law) –

 

(a) No consent is required if to the extent of 1/3 of the property is bequeathed.

 

(b) Even for more than 1/3rd it may be valid if the co-heirs consent either before or after the testator's death.

 

(ii) Bequest in favour of an heir and stranger-

When the bequest is made to an heir and also a stranger, the bequest to the heir is invalid unless assented by other heirs, but the bequest to strangers is valid to the extent of 1/3 of the estate

 

Illustration

 

A bequeaths 1/3 of his property to B, a stranger, and 2/3 to C, one of his heirs. The other heirs do not assent to the bequest to C. The result is that B will take 1/3 under the will and the remaining 2/3 will be divided among all the heirs of A

 

(iii) Bequest to an unborn person-

 

(a) A bequest to an unborn person is void under Sunni Law.

 

(b) It is valid if made to the child in the womb provided it is born within 6 months of the will.

       Under Shia Law, a bequest to a child in the womb is valid if it is born in the longest period of gestation, i.e., 10 months.

 

(iv) Bequest to a testator’s murderer-

A bequest to a person who causes the death of the testator, whether intentionally or accidentally is void under Sunni Law.

 

        Under Shia Law, such bequest is void when the murder was intentionally done. If the murder was committed accidently, such a will is not void.

 

Limitation as regards the property –

 

Extent of the property that may be bequeathed: -

 

The Islamic law restricts the testamentary freedom of a Muslim. He cannot dispose of more than 1/3 of his estate that remains after payment of funeral expenses and debt. This freedom to make a will to the extent of 1/3 stands for the strangers only because in case of a will in favour of an heir no portion (what to say of 1/3 of the property) can be bequested without the consent to other heirs.

 

We derive the following conclusions from the above -

 

(i) without the consent of the heirs - Bequest of 1/3 may be made to a stranger, without the consent of the heirs, and

 

(ii) with the consent of the heirs - (a) Bequest of more than 1/3 to the strangers, (b) Bequest of any portion to an heir.

 

(iii) if there is no heir, the property may be bequeathed to anybody to any extent.

 

Nature of property bequeathed

 

(i) A Muslim cannot create by will an estate repugnant to the law.

 

(ii) Bequest of a thing not in existence - It is not necessary that the thing bequeathed should be in existence at the time of making the will. It is sufficient if it exists at the time of the testator's death.

 

(iii) Subject of bequest - A bequest may be made of any property which is capable of being transferred.

 

(iv) A gift in future - A bequest in future is void.

 

(v) A contingent bequest - A contingent bequest purporting to take effect on the happening or non-happening of an uncertain event is void

 

(vi) Conditional bequest - The condition is void and the bequest valid. If the bequest is not made in absolute terms but imposes restriction e.g. legatee will not transfer the property, the condition is void and the bequest valid.

 

(vii) A bequest at corpus may be made to one person and bequest of usufruct, to another.

 

(viii) Alternative bequest valid - A bequest to a son or in his default, usufruct to charity is valid.

 

(ix) Usufructuary bequest is valid.

 

In an alternative bequest, the testator makes a will in favour of a legatee and provides that if the legatee predeceases him (the testator), the property will go to the second legatee by will. If the first legatee survives that testator, he will get the property bequeathed to him. But if he predeceases the testator, the second legatee would be entitled to get the bequeathed property,

 

MARZ-UL-MAUT

 

The term marz al-mawt (marz-ul-maut) means ‘the disease of death’, or ‘the disease which causes death’.

 

It is essential condition of marz-ul-maut, (i.e., death illness) that the person suffering from the marz (malady) must be under an apprehension of maut (death).

 

According to Multa, a marz-ul-maut is a malady which induces an apprehension of death in the person suffering from it and which eventually results in death"

 

According to Baillie, “The most valid definition of death-illness is that it is one which will probably issue fatally”.

 

According to Hedaya, “A malady is said to be of long continuance, if it has lasted a year, in which case it cannot be regarded as a marz-ul-maut, for the patient has become familiarized to the disease. This however, is not a hard and fast rule, and the question of apprehension of death must be determined by the court upon the evidence in each case"

 

In order to constitute marz-ul-maut, the following conditions are necessary:

 

(i) the illness must cause the death of the deceased:

 

(ii) the illness must cause apprehension of death in the mind of the deceased;

 

(iii) there must be some external indicia of a serious illness.

 

         The question of apprehension of death is of extreme importance; it is essential that the gift should be made under the pressure of the sense of the imminence of death; Ibrahim Goolam Ariff u Saiboo, (1907) 34 1A 167 (177). In Safia Begum v Abdul Hazak, (1945) 47 Bom LR 381. it was emphasized that the crucial test of marz-ut-maut is the subjective apprehension of death in the mind of the donor; and this is to be distinguished from the apprehension caused in the minds of others.

 

       In Hassarat Bibs Goolam Jaffar, (1898) 3 CWN 57, it was observed that the following questions arise to test whether the disease is a marz-ul-maut or not-

 

1. Was the donor suffering at the time of the gift from a disease which was the immediate cause of his death?

 

2. Was the disease of such a nature or character as to induce in the person suffering, the belief that death would be caused thereby, or to engender in him the apprehension of death?

 

3. Was the illness such as to incapacitate him from the pursuit of his ordinary avocations or standing up for prayers a circumstance which might create in the mind of the sufferer an apprehension of death?

 

4. Had the illness continued for such a length of time as to remove or lessen the apprehension of immediate fatality or to accustom the sufferer to the malady?

 

A gift made by a Mohammedan during marz-ul-maut or death illness cannot take effect beyond a third of his estate after payment of funeral expenses and debts, unless the heirs gave their consent, after the death of the donor, to the excess taking effect; nor can such a gift take effect if made in favour of an heir unless the other heirs consent thereto after the donor's death; Wazir Jan v Saiyyid Altaf Ali, (1887) 9 All 357.

 

Condition necessary for validity of marz-ul-maut - A gift made during marz-ul-maut is subject to all the conditions necessary for the validity of a hiba or gift, including delivery of possession by the donor to the donee.

 

Conclusion

 

Wasiyat under Muslim law serves as both a moral exhortation and a legal tool, carefully regulated by religious principles to balance personal wishes with the divine mandates of inheritance. It allows a Muslim limited but meaningful control over property disposition, protects heirs' rights, and supports charitable or personal bequests within set boundaries.​

 

FAQ (Frequently Asked Questions)

 

Ø What is a Wasiyat under Muslim law?

A Wasiyat is a will or testamentary disposition whereby a Muslim testator declares the distribution of part of their property to a legatee, which takes effect after the testator’s death.​

 

Ø Who can make a Wasiyat?

Only a Muslim of sound mind and who is not a minor can make a valid Wasiyat. The testator must act of their free will and without coercion or undue influence.​

 

Ø Who can be a legatee?

Any individual including a non-Muslim or even an unborn child in the womb can be a legatee, provided the Will does not apply to unlawful purposes and the legatee is alive at the testator’s death.​

 

Ø What is the property limit for a Wasiyat?

A Muslim can bequeath up to one-third of their estate via Wasiyat. A Will exceeding this limit is only valid if all legal heirs consent after the testator’s death.​

 

Ø Can an heir be a beneficiary by Wasiyat?

A Muslim cannot usually bequeath property to an heir unless other heirs consent to such bequest after the testator’s death.​

 

Ø How is a Wasiyat different from a gift?

A gift (hibba) transfers property immediately, while a Wasiyat only takes effect after the testator’s death and can be revoked anytime before death.​

 

Ø Is a written document necessary for a Wasiyat?

No specific formality is required Wasiyat can be oral or in writing as long as the intention is clear and can be proved.​

 

Ø How can a Wasiyat be revoked?

The Muslim testator can revoke or modify the Wasiyat at any point before death; the last valid act is considered effective.​

 

Ø What happens if the legatee dies before the testator?

The bequest lapses unless the legatee’s heirs are specified as substitutes or entitled to the legacy under certain interpretations (especially in Shia law).​

 

Ø Are conditional or contingent bequests allowed?

Conditional bequests are allowed but cannot contradict the completeness of the transfer. The validity depends on whether the law (Sunni or Shia) recognizes the condition.​

 

Ø Can a Sunni Muslim make a 'will' in favour of an heir?

Yes, a Sunni Muslim can make a will in favour of an heir but a bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator, Ghulam Mohammad v Ghulam Husain, (1932) 59 IA 74: 54 All 93: 136 IC 454. Any single heir may consent so as to bind his own share.

 

In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the will, but to the time of the testator's death.

 

Ø Whether probate of a Muslim will is necessary?

According to Muslim law, a will of a Mohammedan may be admitted in evidence, after due proof even though no probate has been obtained. The estate of testator vests in the executor from the date of death provided executor accepts the office. He (Executor) then gets power to alienate the estate for the purpose of administering it. He also possesses power of an executor under the Probate and Administration Act, 1881, and of the corresponding provision of the Indian Succession Act, 1925.