Concept of will under Muslim Law
Concept of Will Under Muslim Law
Author: Divya Jain
*This article has been written by the author while pursuing Certificate Course on Research Methodology with us.
Introduction
“A will or Wassiyat” is a device or can we say as an instrument with the help of which an owner of the property makes a disposition of his property, that is, to take effect after the death of such a person and by the virtue of its nature is rescindable.
In terms of general law in India, mentioned under Section 2 of the Indian Succession Act, 1925. A Will is meant to dispose off property. There should be some property that is being given to others when the testator dies. Certain formalities must be complied with so as to form a valid Will.
It needs to be signed and attested, as required by using the law. A will turns into an enforceable handiest after the demise of the testator. It offers, in reality, no rights to the legatee (the individual that inherits till the loss of life of the testator). It has no impact on the course of the lifetime of the testator. The regulation on Muslim Wills is different from the regulation governing Wills made by using Hindus or those made below the Indian Succession Act, 1925. This is because, under Muslim law, the testamentary disposition of belongings is considered to be Divine in nature and attracts on the Quran. The Muslim Will isn’t always governed via the Indian Succession Act, 1925. The Muslim personal legal guidelines in India, or the Shariat law, decrees certain regulations and rules and approaches in which a man or woman can dispose off his/her belongings. A will carried out by means of someone may also be revoked if loses his sanity and will become of unsound mind next to the execution of a will.
Origin
Underneath Muslim Laws, no person is entitled to make the will of the complete property. Barriers are imposed in making a will. The purpose is to pay the honor to the word of Prophet so that you can ensure the stocks of the legal heirs. Wills are declared lawful in the supreme rule book of Muslims Quran, although the Quran does not say anything about wills. The limit up to which one can bequest his own property is only 1/3 of his estate traced to a Hadith of the Prophet which has been said via Sa’dIbnAbiWaqqas and the information was scattered by Bukhari1.[1]
The story behind this was one of the fellow associates of Prophet was very ill and there were chances of his death, as was very old as well, also he canceled his Mecca due to ill-health. He was asked by the Prophet about the distribution of his wealth, for which replied that he will give all his property in charity (not to the family), to which Prophet said he should give only 1/3 of his total property to any one of his choices so that the major portion remains within the family and they will not become destitute in future.
Object
Everybody likes to make sure that the life he has led has been significant and is concerned approximately his property after his loss of life. Someone can make sure as to how his assets must devolve and to whom it shall devolve, after his death, through a will. If someone dies without leaving behind his will, his belongings might devolve by using manner of regulation of intestate succession and not testamentary succession (i.e. in accordance to the need) hence, it’s miles top-rated that one needs to make a will to make certain that one’s real intension is observed and the assets is devolved as a result. Will is a vital testamentary device via which a testator can give away his belongings according to his needs. Prior to the devolution of the property of the deceased who’s difficult to Islamic laws, it must be glad that his funeral prices and money owed are fully paid. Wills under the Islamic regulation traced its basis and suggestions from the holy Quran, consequently, the making of a will is a divine mandate and the will itself should be made with the purest of coronary heart. It offers the testator the possibility to make provisions for his heirs and dependents. It’s also a manner of fending for the terrible and worthwhile deserving friends and servants.
Formalities of Making a Will:
- There is no specific formalities as to make a will[2]. There’s neither any layout nor any requirement laid down because it needs to be written.
- If it is in writing then it wants now not to be signed[3].
- It does not require any attestation if attested then no need for registration[4].
- Even the instructions of the testator on a blank paper would constitute a Will[5].
- In Mazhar vs. Bodha, 21 All 91 a letter was written by a Muslim just before dying, made a Will, that directs the ratio of transactions of his property, which was later accepted as a valid will.
Essentials of will: A will to be valid, the following conditions are to be satisfied:
1. Capacity/Competence of Testator:
Every Muslim, who is of sound mind and has attained the age of majority, has the capacity to make a will. Two conditions mandatory are:
(i). sound minded-ness of testator
(ii). Not a minor
Explainatation
Sound Mind – A person prior to the process of making a will, if insane then the Will so made id declared to be invalid.
Age of Majority- Unlike The Indian Contracts Act, 1872, the age of majority in Muslim Law is 15 years of age. But after the Indian Majority Act, 1875 declared the age of majority as 18 years.
Under the Shia law, a Will made by a person, who has been administered with poison, or, has injured himself so as to commit suicide, is said to be invalid. But a Will made by a person, who after making the Will tries or commits suicide is said to have formed a valid Will[6]. A will is invalid if, made by a person under coercion, undue influence, or fraud. Similarly, the court will closely inspect the will of a pardanaseen lady before admitting it.
2. Competence of Legatee:
The legatee or beneficiary under the will should be competent enough to hold the Will.
The Legatee might be a Muslim or a Non-Muslim, but he should not be against Islam. A person born in any religion can be competent legatee provided that he is not hostile towards Islam.
Few points to be pondered are:
-Will in favor of an Institution: An institution a competent legatee but it should not be promoting any activities other than Islam.
-An unborn person: The effective date is the date of declaration and hence the legatee should be in existence at the time of making a Will. A child in her mother’s womb is treated as an existing person but in Shia law, the unborn child should be born within 10 months of such declaration, whereas tin Sunni law tenure is 6 months.
-Bequest for the purpose of Charity: The Will made with the intention of charity is valid but it should be against Islam[7].
-Bequest to an heirs: Under Sunni law, a bequest cannot be made to an heir at all, unless other heirs give consent to it[8].
3. Subject Matter:
Any type of property whether it is immovable or movable, corporeal or incorporeal, which has a capacity of being transferred, may form the subject-matter of a transaction of a Will. Under Muslim law, it can be possible that a testator may give property to any one person and the right to utilize it without harming it, to another. The testator is able to only write the property that he owns. The property must be in existence at the time of the death of the testator.
These can be of varied nature such as
- Alternative Bequest
- Conditional Bequest
- Bequest of Life Estate
- Contingent Bequest
- Testamentary Capacity:
A Muslim wants to make a Will he can do it but with the extent of one –third of his total property, which ascertained after the payment of his funeral expenses and debts, etc. in RijiaBibi v Md Abdul Kachem (AIR 2013 Gau 34), held that the Will executed was void as it was not consented by the heirs and all the claimants would have their rights determined in accordance with the law of Inheritance.
A Muslim cannot discard through will more than 1/3 of the net assets inside the wake of allowing (assembly) for the duties and memorial provider charges of the deceased benefactor (beneath both Hanafi Law and Shia regulation). The relaxation of the 2/3 provide must be made accessible for appropriation among the beneficiaries. However, to pass on the 1/3 provided, the Muslim needs to collect the assent of alternate beneficiaries. Gulam Md v GulamIiussain, AIR 1932 PC 81 held for this case that property for beneficiaries without the assent of various beneficiaries is invalid. If the amount so transferred as felt by the testator is more than enough, as a consequence reduces it, this process is called abatement of legacy. Shia law chooses the process of abatement of legacy through the preferential method, whereas the Sunni law, the abatement is made in a rateable manner.
EXCEPTION TO THE RULE OF ONE-THIRD:
Since the rightful claims of the heirs should not be disturbed, it derives its origin from Hadith. There are majorly two exceptions:
1. An heirless person can bequest the whole property.
2. Where the heirs themselves agree to bequest more than one-third of the property
EXECUTION OF AN ISLAMIC WILL:
On the time of creating the desire, a man or woman desires to select the folks who would possibly execute his will. The request is taken under consideration at the time of disposal of property. The man or woman picked as an executor of the need has the proper to head away with the assets as designated inside the will.
8. CONSTRUCTION OF WASSIYAT OR WILL:
The overall rule governing the construction of the need is that – a Muslim will is to be construed according with the policies of construction of the need laid down in Muslim regulation, the language used by the testator and the surrounding instances. It’s also a preferred rule of construction of wills that until a one-of-a-kind goal seems, a will speaks from the demise of the testator, and the bequests, contained in it take effect as a result. It is a general rule of construction of wills that the courts attempt to deliver effect, as some distance as possible, to the aim of the testator.
THE REVOCABILITY OF A WILL:
Since a Will by its nature is revocable. Unless the testator dies with his last declaration of a Will, he can change or alter anytime or can cancel it either expressly or orally or even by implied gestures.
- Express Revocation: The express revocation consists of an oral or written declaration made by the testator. It can be done either orally or even in writing. The intention to revoke i.e., the reason behind such revocation should be unequivocal.
Codicil to the Will
If a testator intends to make a few changes to the will, without converting the whole will, he can accomplish that by creating a codicil to the desire. The codicil may be finished in a comparable way as the desire.
- Implied Revocation: In this state of affairs, the behavior of the testator is to be inquired into to ascertain whether he has revoked the deed or any of the disposition in it.
In both mentioned above instances, the working principle is that the testator should exhibit animus revocandi that is the Latin maxim for the purpose to abrogate the Will the testator must reveal the intentions for such action.
Where there provides reason of sickness someone is laid low with he could make disposition of his belongings supplied there’s a critical apprehension of approximately his demise. That is comparable to the Latin maxim donatio mortis causa, items or bequests made in pondered of dying.
Notwithstanding its recognition under the Islamic law, the bequest on this situation must now not exceed one-third of the property of the testator.
Also few more circumstances as discussed:
- Attempt to suicide by Testator
If a will is executed via a person who has attempted to commit suicide, this sort of will is pondered as void under the Shia regulation. The good judgment behind this rule is that if a person has attempted suicide, he can’t be held in his everyday country of thoughts instead, he is assumed to be mentally volatile and disturbed. But, under Sunni law, a will performed in such occasions is completely legitimate.
- Murderer of testator
A will comes into effect best after the death of testator. Thus there’s a probability that a greedy and impatient legatee may motive the demise of the testator with a purpose to snatch the property as quickly as feasible. A legatee kills or reasons the loss of life of the testator both intentionally or accidentally isn’t always allowed to take the need and normally disentitle to take the belongings. However, under Shia regulation, if a legatee reasons the dying of the testator either by chance, negligently or accidentally, then he’s certified to take the assets and the desire is treated as a legitimate will.
Death of the legatee before the will is performed:
Under Sunni law, the bequest will lapse and on the death of the testator, the bequeathed will go to heirs of testators.
Whereas under Shia Law, the legacy will only lapse if the legatee does not have any heir[9].
- COMPARATIVE STUDY BETWEEN SHIA AND SUNNI LAWS:
| SHIA LAWS | SUNNI LAWS |
| Bequest to an heir is valid only if it is one-third. | Bequest to an heir is invalid even if it is one-third. |
| Consent of the heirs must be given before or after the death of the testator. | In order to pass property more than 1/3 to any other person through of the testator, consent of the heirs is necessary to be taken after the death of the testator. |
| Bequest in favor of the child in womb of her mother is valid subjected that the child is born within 10 months of date of declaration of will. | Bequest in favor of the child in womb of her mother is valid subjected that the child is born within 6 months of date of declaration of will. |
| A will by the testator who later commits suicide is invalid. | A will by the testator, when written or declared in his all senses, who later commits suicide is valid. |
| Legacy must be accepted before or after the death of the testator. | Legacy must be accepted after the death of the testator. |
| Legatee committing murder or causing death of the testator intentionally cannot claim the property of the testator, but if accidently or negligently then he can claim the legacy. | Legatee committing murder or causing death of the testator cannot claim the property of the testator later. |
| If the legatee dies before testator the legacy lapses if he dies without any heir or the testator himself revokes the Will. | If the party in whose favor the Will is transferred dies before the testator, the legacy is lapsed. |
- CONCLUSION:
The concept of a Will discussed in the Islamic law is an intensive subject which cannot be fully elucidated as there are other schools of thought and tending to be different or develop in different directions relating to the making of Will in India under Islam. The decision of making Wills orally is quite dangerous also the heirs of the legatee can acquire the legacy after the death of legatee in one such school provides a gigantic loophole. Hence some strict norms should be applied in various aspects. Also, various aspects of the Quran are left to be covered, moreover, this is one such interesting topic.
References:
- Aqil Ahmad, Mohammedan Law, 23rd Edition
- Dr. Paras Diwan, Muslim law in Modern India, 12th Edition
- M. Hidayatullah, Mulla Principle of Mohammedan Law,19th Edition
- Dr .PoonamSaxena, Family Law II, 4th Edition.
[1]Maulana Muhammad Ali, Manual of Hadith
[2]Abdul Manan Khan v MurtuzaKhan,AIR 1991 Pat 155
[3]AuliyaBibi v Ala Uddin,1906 28 All 715
[4]RamjiLal v Ahmed Ali, AIR1952 MB56 ; SarabaiAmibai v MahomedCassum Haji Jan Mahomed,1919 43 Bom 641
[5]Abdul Hameed v Mohammad Yoonus, AIR 1940 Mad 153
[6]MazharHusen v BodhaBibi, (1898) 21 All 91)
[7]Badrul Islam Ali Khan v Ali Begum, AIR 1935 Lah 251
[8]Sajathi Bi v Fathima Bi , AIR 2002 Mad 484)
[9]Huseni Begum v Mohammad Mehdi, AIR 1927 All 340
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