Willl Under Islamic Law

Willl/ Wasiyat Under
Islamic Law
By Dr. Samreen Hussain

Assistant Professor- Law
DR RMLNLU- LKO
Important Defintions
1. willl/ wasiyat/ legacy/ Testementary succession- An

assignment of property to take effect after one’s
death ( Durrul Mukhtar)
Legator/ testator- person who can make will
Legatee/ Benificiaries- in whose favour Will is made.
Wasi/ Excecutor- person appointed for excecution of
Will by the Testator
Probate- means copy of the will certified under the
seal of a court of a competent jurisdiction. Probate of
a will when granted establishes the Will from the
death of the testator and renders valid all
intermediate acts of the executor as such.
Corpus/Ain – means absolute right of ownership
of property and its for unlimited period
Ususfruct/ Manafi- use or enjoyment of property
for a limited period.
Tamlik is the term of general import and may be
applied to a gift , sale or to a will.
Heirs- any person related to deceased by
marriage or blood.
Under Islamic Law of ownership both corpus

+ usufruct should be there for complete
ownership. If only one vested in a person it is a
lesser ownership.
Salient features of property
under Islamic Law
No distinction between moveable or Immoveable
property
No distinction between self acquired and joint
Family Property
No Birth right of heirs in the Property
No concept of Joint Family
Same law of Succession for both males and
females
Person till Alive is absolute owner of his /her
Properties. So the heirs are presumptive or
would be heirs and cannot deal with the property
during the lifetime of the person.
Types of Succession
Testamentary Succession
Intestate succession
Both are governed by Shariat Law.
Section 57 of Indian Succession Act 1925
applies only to Hindu, Sikh Buddhist, Jain and
Christians.
Introduction
Every Muslim Has Absolute power to make

will.
According to tyabji
“ will is a the legal declaration of the intention
of a Muslim with respect to property which
he/ she desires to be carried into effect after
his death.”
Formalities of Will
1. Testator must be competent
2. Intention must be clearly expressed- oral or
written
3. Must be intended to operate after his/her
death
4. The legatee/ beneficiary must be competent
to take the benefit.
5. The qualitative requisites of the subject
matter of the will must be satisfied
6. The quantitative limits of the property must
be observed.
Forms of Will
A will can be
1. Oral
2. Written
The essential is the presence of two witness in
accordance to Islamic law.
A written will must be signed by the witness
else will not be a valid will.
1. Who can make Will or be a
legator
Any person who is
1. Muslim
2. Sane – A will made by person of unsound mind shall remain
void even if he recovers and stay sane till his death
3. Major- under Islamic law 15 years is taken as majority but in
India in general a person needs to be above 18 for the purpose
of making Will.
4. Free consent
Though a will made in minority if ratify in majority becomes valid.
An apostate can also make will after the enactment of Caste
disabilities Removal Act 1850
A person who is under debt need to first discharge his debt then
only the property will be distributed among the beneficiaries
An insolvent cannot make a will.
2. Comptency of the Legatee
Any person who is capable of holding property-
male or female Muslim or non Muslim- having
legal personality
An unborn child- under sunni law should be born
within 6 months of death of legatee- under shia
law the period is 10 months
Also under shia law- if usufruct of the property is
bequeathed to two or more person- the first of
them must exist when the testator dies and other
should precede the first. ( Held in Nawazish Ali
Khan V Ali Reza khan, AIR 1948 PC134)
3. Subject Matter of the Will
Any property- moveable or immoveable can be
subject of the will.
Corpus and usufruct can be validly bequeathed to
different person. For example A bequeaths his
house to be used by X in his lifetime and whole
of the property to Y after X death
For usufruct to be valid – a duration to be
provided.
It is not necessary that property bequeathed
must exist at the time of will but should be in
existence at the opening of Will.
Example
1. A writes in his Will that he will give plot X
to B which he will buy in Kanpur. A never
buys the land. B cannot asked the plot to be
purchased but if A buys the land it will be
given to B.
2. A bequeaths a house to b. he later on pulls
down the house. B will get nothing.
4. Quantitative limit imposed
on the Property
Quran did not Put any Ceiling on the quantum of
the Will
But the jurist after reading the verses on Will and
Inheritance together laid down the legal limit of
1/3 of the property. Meaning a Muslim can only
give 1/3 of his property in will.
This 1/3 is calculated after deducting any debts
due to him and funeral expenses.
The will which is made in excess of this limit is
not regarded to be void but its enforceability
depends upon the consent of the heirs of the
deceased.
Under Sunni law- the consent of the heirs need to
be obtained after the death of the legator.
Under shia law – consent can be obtained before
or after the death of the legator. Once consent
given cannot be retracted.
If few heirs give and few doesn’t then the excess
of 1/3 can be enforced to the extent of the
shares by inheritance of the consenting heir.
Conditions in which limit can be exceeded
1. No heirs of the testator
2. Consent is given by all the heirs
3. Where the only heir of testator is husband or
wife.
Bequeaths on the heirs of
deceased
Under Sunni Law
A person cannot bequeath any property not even
1/3 to his/her own heirs. If he wants to bequeath
then all the present heir should give consent
after the death of the testator.
Case:- Bhullan v Ehsan Ilahi ( A father bequethed
certain property to his son. His other two heirs
daughter and wife did not give consent. No will)
Under Shia law
A shia can bequeath 1/3 of his property to anyone
including the heir.
Disqualification
Under Sunni law
If the legatee causes death of the legator the will in
his favour becomes void- accidental or intentional
both.
Under Shia law
Only if the legatee causes intentional death then
only Will becomes void.
Secondly will of a person who commits suicide

Under Sunni law-valid
Shia law- if he survives then the will becomes
invalid – dies the will is valid.
Lapses
Under sunni law
Death of the legatee in the lifetime of testator
Will automatically lapse.
Under Shia law
Only if the testator has revoked the will. If not
then the heirs of the legatee will get the
property.
Abatement of legacies
When the bequeath is more than the 1/3 and the
heirs does not consent the sunni law provides
that the bequeath should be rateably reduced or
abated.
For example A a sunni Muslim gives Rs 3000
jointly to X and Y and 3000 to C. the 1/3 limit
permits him to give total of 4000.
Now total bequest come to Rs 6000- now in first
step we will assume that amount is rs 4000,
2000 to be disregarded. In this 4000
A+B=3000 so it shall become 2000 i.e. 1000 each
C=3000 will become 2000.
2. A suuni Muslim leaved behind property of
75,00. he executes a Will giving 30,000 to A
and 20,000 to B. now the Bequest need to be
proportionally reduced.
Total assets- 75,000
Bequeathable 1/3 = 25,000
Total amount given under = 50,000
After rateable deduction
To A= 15,000 (earlier amount 30,000)
To B= 10,000 (earlier amount 20,000)
A Sunni male died leaving behind an asset
worth of 1,50,000. He bequeathed 50,000 to
his wife and 50,000 to a friend D.
Total Asset= 1, 50,000
Bequeathable 1/3 = 50,000
wife= Nothing as under Sunni law a heir
cannot be legatee
D= 50,0000. no ratable reduction required.
Under Shia law- if bequeath exceeds 1/3 and is for two or more than two
legatee - heirs does not consent, the rule of chronological priority is
followed. Meaning the legatee name which appears first in the bequest
will be given then the next and so far till the 1/3 limit is exhausted.
For Example
A testator leaves behind asset of 75,000. He gives 10,000 to A, 15,000 to
B and 40,000 to C.
Total Assets= 75,000
Beqearhable 1/3= 25,000
To A= 10,000- given the whole amount
To B = 15,000- given the whole amount
To C= 40,000 – nothing as limit is exhausted.
Exception to this Rule

If two person are given 1/3 each then the later Bequest shall Prevails. For
Example A in his will gave both A and B 60,000. the bequeathable
property is 60,000 here as the bequest to B is later he will the entire
amount and A will get nothing.
Difference Between Sunni and
shia law
Sunni Law Shia law
No bequeath to heirs Allowed, not even Bequeath to heirs to limit 1/3 allowed.
1/3 Consent can be given before or after.
Consent of heirs after the death of testator Born till 10 months from the date of
Child in the womb- will valid if born testator death
within 6 months Only when intentional death then cannot
Legatee causing death cannot take take property.
property
Thank You

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Willl/ Wasiyat Under

By Dr. Samreen Hussain

1. willl/ wasiyat/ legacy/ Testementary succession- An

Under Islamic Law of ownership both corpus

Every Muslim Has Absolute power to make

Secondly will of a person who commits suicide

Exception to this Rule

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