A will or Testament or Wasiyat has been defined “an instrument by which a person makes disposition of his property to take effect after his death. ”
Formality of a will
As a general rule, no formality is required for making a will (Abdul Manan khan v. Mirtuza Khan AIR 1991 pat 155). No writing is necessary to make a will valid, and no particular form, even verbal declaration is necessary so long as the intention of testator is sufficiently ascertained.
Where the will is reduced to writing is called a ‘Wasiyatnama.’ If it is in writing it need not to be signed. It does not require attestation and if it is attested there is no need to get to get it registered. Instructions of the testator written on a plain paper, or in the form of a letter, that in clear cut terms provide for distribution of his property after his death would constitute a valid will (Abdul Hameed v Mahmood Yoonus AIR 1940).
In case, will is oral, the intention of the testator should be sufficiently ascertained. In comparison to a will in writing which is easier to prove, the burden to prove an oral will is heavy.
Requisite of a Valid Will
The essential requisites of a valid Will, under Muslim law are as follows:—
1. The testator (legator) must be competent to make the will.
2. The legatee (testatrix) must be competent to take the legacy or bequest.
3. The subject (property) of bequest must be a valid one (Qualitative requisite).
4. The bequest must be within the limits imposes on the testamentary power of a Muslim (Quantitative requisite).
(1) Testator and his competence (who can make will?)
Every major Muslim (above 18 years) of sound mind can make a will. Muslim Law, the legator must have a perfectly ‘disposing mind’ i.e. the legator must be capable of knowing fully the legal consequences. A will that is executed is apprehension of death is valid, but under the Shia law, if a person executed any will after attempting to commit suicide, the will is void. The reason behind this rule is that where a person has attempted suicide, he can not be said to be in his normal disposing sate of mind, rather, his mental capacity is completely disturbed.
The legator must be a muslim “ at the time of making or execution of will.” A will operates only after the death of the legator; before his death, it is simply a mere declaration on the basis of which the legatee may get the property in future.
If a will has been executed by a Muslim who ceases to be a muslim at the time of his death, the will is valid under Muslim law.
(2) Legatee and his competence (To whom will can be made?)
Any person capable of holding property (Muslim, non-muslim, insane, minor, a child in its mother womb, etc.) may be the legatee under a will. Thus, sex, age, creed or religion is no bar to taking of a bequest. Legatee (including a child in its mother’s womb) must be in existence at the time of making of the will. Thus, a bequest to a person not in existence (‘unborn person’) is void.
A bequest may be validly made for the benefit of ‘juristic person’ or an institution (but it should not be an institution that promotes a religion other than the muslim religion viz. Hindu Temple, Christian church, etc. .
A person who has caused the death of the legator (i.e. Murderer), cannot be a competent legatee.
Joint Legatee: A bequest may be made to two or more legatee jointly, and, when no specific share of any of them has been mentioned, the property is divided equally amongst all the legatees.
(3) Subject Matter of will (Bequeathable property) and its validity
The testator must be the owner of the property to be disposed by will; the property must be capable of being transferred; and, the property must be in existence at the time of testator’s death,
In order to be a valid bequest the grant in the bequeathed property must be complete or absolute. A bequest has to be unconditional.
If any condition is attached, say the legatee shall not alienate the subject of legacy, the condition is void and the bequest is effective without condition.
However, an alternative bequest of property (i.e. to one or failing him to the other person) is valid. Thus, when the testator willed that his son if existing at the time of his death will take the bequest, if not in existence his son’s son will, and failing both it will go to charity, was held valid [Advocate-General v jimbabai (1917)].
Creating of ‘life estate’ is not permissible under Sunni law; the bequest of a life estate in favour of a person would operate as if it is an absolute grant.
For Example, A makes a bequest in favour of X of his house for life and after him to B absolutely. The bequest in favour of X would operate absolutely and Y will not get anything. Under Shia law, however, the bequest of a life estate in favour of one and a vested remainder to another after his death is valid.
(4) Testamentary Power and its Limits (Bequeathable one-Third)
A Muslim does not possess an unlimited power of making disposition by will. There are two-fold restriction on the powers of a Muslim to dispose of his property by will.
(i) No Muslim can make a bequest of more than one-third of his net assets after payment of funeral charges and debts. If the bequeathed property exceeds one-third, the consent of other heirs is essential (Sunni and Shia laws). A bequest of entire property to one heir to the exclusion of other heirs is void [Husaini Begum v Mohd. Mehdi (1927)]. Where the heirs refuse to give their consent, the bequest would be valid only the extent of one-third of the property and the rest of the two-thirds would go by intestate secession.
(ii) In respect of bequest of one-third to an heir, the consent of other heirs is required in sunni law, but not in Shia law. In case of a non-heir (stranger) the consent of heirs is not required in both.
Under the Shia law, there is no difference between a bequest to an heir or non-heir so long as it does not exceed one-third of the net net estate of the legator. Such a legacy is valid without the consent of the other heirs. Shia law gives more extensive power to make a will in comparison to Sunni law.
(iii) The above rule of bequeathable one-third will not apply to a case where the testator has no heir. The right of government to take the estate of an heir less person will not, in any way, restrict the right of person to make a disposition of his property, as he likes. Thus, government is no heir to an heir less person.
(iv) a bequest made for pious purposes is valid to the extent of one-third of the property, both under Sunni as well as Shia.
(v) The ‘1/3rd limit’ rule will not apply if a Muslim marries under the special marriage Act, 1954, because then he has all the powers of a testator under the Indian succession Act, 1925.
Illustration: A, a Muslim dies leaving behind him property of Rs. 4,000. His funeral charges are Rs. 100 and his debts Rs. 900. The remaining money is Rs. 3000 and 1/3 of it is Rs. 1000 which may be the subject of will. The remaining two-third must pass to the heirs of the testator according to law.
Difference between Sunni ans Shia Law of wills
1. SUNNI LAW- Bequest of any portion (1/3 or more) to an heir without the consent of other heirs is invalid.
SHIA LAW- A bequest to the extent of 1/3 can be made to an heir without the consent of other heirs.
2. SUNNI LAW- Heir’s consent should be given after the death of testator.
- SHIA LAW- heir’s consent may be given before or after the death.
3. SUNNI LAW- A will of a person committing suicide is valid.
SHIA LAW- it is valid only when the will is made before taking any step towards the act of suicide.
4. SUNNI LAW- A bequest to a child in womb is valid if born within 6 months.
SHIA LAW- It is valid even if born in the longest period of gestation i.e. 10 months.
5. SUNNI LAW- In case of murder of the testator by the legatee, the legatee is deprived of his legacy - be the murder intentional or accidental.
SHIA LAW - Shia legatee suffers only if it is international
6. SUNNI LAW - Rateable abatement of legacy applies (see under the questions sections).
SHIA LAW - Rule of chronological priority applies.
7. SUNNI LAW - Acceptance of the legacy before the testator’s death is of no effect.
SHIA LAW - Acceptance of the legacy during the testator’s life time is lawful.
8. SUNNI LAW - if degrees dies, before, the testator, the legacy lapses and reverts to the testator.
SHIA LAW - The legacy does not lapse but passes to the heirs of legatee.