Sk.

Samiul Haque ( 21 Law 016 – BSMRSTU )

A Will or Testament or Wasiyat has been defined as “an instrument by which a

person makes disposition of his property to take effect after his death.” In Surat Al-
Baqarah [2:180] of Quran, God commands all believers to write a will equitably when
they feel death near.
Durrul Mukhter defined that, "Will is an assignment of property to tak, effect after
one's death."
Tyabji defines Will as “conferment of right of property in a specific thing or in a profit
or advantage or in a gratuity to take effect on the death of the testator.”
According to Section 2(h) of Indian Succession Act, 1925, "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.”
Ameer Ali defined a Will from the point of view of Mussalman as “a divine institution
because its exercise is regulated by the Holy Quran.”
According to Hedaya, "Wariyat means an endowment with the property of anything
after death-as if one person should say to another, give this article of mine, after my
death, to a particular person.”
Will is a mode of transfer property (sell, lease, mortgage, gift, exchange).
In Islamic law, a Will executed by a Muslim is known as „Wasiyat‟. The person who
executes the Will is called „legator‟ or „testator‟ or „musi‟ and the person in whose
favour the Will is made is known as „legatee‟ or „musiliah‟. The executor of will is
the persons appointed in the will to enforce the will and is called „wasi‟. Will in
Muslim Law is subjected to the provisions of Shariyat Act, 1937.

Form of Will
As a general rule, there is no certain form of will.
It may be made orally or in writing. Convenience, however, demands that it should
be in writing. . If it is in writing, no particular form of words are required as long as
the intention of the testator is cleared. – Mohamed Altaf v. Ahmed Buksh 25 WR
121 P.C.
Mazhar Husain v. Bodha Bibi 21 All 91 (P.C.)- The Privy Council held that a letter
written by a testator shortly before his death and containing directions as to the
disposition of his property constituted a valid will.

Thus, a dumb person, or a person who is unable to speak due to illness, may make
valid wills through gestures. For instance, a sick man is unable to speak from
weakness. So the essentials are:
(1) The testator must be competent;
(ii) The bona fide intention must be clearly expressed; (iii) it must be intended to
operate after his death;
(iv) The quantitative limits of the property must be observed;
(v) The qualitative requisites of the subject-matter of the will-the property are
satisfied; and
(vi) The legatee must be competent to take the benefit. We shall discuss these topics
below.

Who can make will / Capacity of Testator

Every Muslim who is sane and rational is entitled to make a will. Hadith from Sahih
Muslim, The Prophet Muhammad (peace be upon him) said, "The Muslim's property
will not be inherited by a disbeliever." (Sahih Muslim, Book 13, Hadith 4014). Sunan
Abu Dawood (Book 19, Hadith 2924) also gives importance on this. The person who
executes the Will is called „legator‟ or „testator‟ or „musi‟. The competencies of a
testator are following below:
1. Every major Muslim (above 18 years) of sound mind can make a Will.
2. The age of majority is governed by the Indian Majority Act, 1875, under which, a
person attains majority on completion of 18 years (or on completion of 21 years, if he
is under supervision of Courts of Wards).
3. Thus, the testator must be of 18 or 21 years, as the case may he, at the time of
execution of the Will.
4. At the time of execution of a Will (ie. when it is being made), the testator must be
of sound mind.
5. Under Muslim law, the legator must have a perfect disposing mind i.e. the legator
must be capable of knowing fully the legal consequences of his activities not only for
a brief period when the declaration was made, but much after that.
6. A Will that is executed in apprehension of death is valid, out under the Shia law, if
a person executes any Will after attempting to commit suicide, the Will is void.
7. A minor is incompetent to make a Will (such a Will is void but a Will made by minor
may subsequently be validated by his ratification on attaining majority.
8. A Will procured by undue influence, coercion or fraud is not valid, and the court
takes great care in admitting the Will a pardanashin lady. Thus, a Will must be
executed by legator with his free consent.
9. The legator must be a Muslim at the time of making or execution of the 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 i future.
10. 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

11. Also, the Will is governed by the rules of that school of Muslim law to
which the legator belonged at the time of execution of the Will. For
example, if the legator was a Shia Muslim at the time when he wrote the
Will, only Shia law of Will is made applicable.

Legatee and his Competence / To whom Will can be made

The person in whose favour the Will is made is known as „legatee‟ or „musiliah‟.
According to the strict letter of the law, the legatee must be in existence at the time
of the bequest, and not merely at the time of the testator's death. The general rule of
modern law is that a will speaks from the death of the testator; this is the view taken
in a Bombay decision, and recommended by Tyabji. Surah An-Nisa Ayat 11 (4:11
Quran) provides specific guidelines for the distribution of a person's estate among
their family members, which can also serve as a basis for designating beneficiaries in
a will. Legatee and his competences are following below:
1. Any person capable of holding property (Muslim, non-Muslim, insane, minor, a
child in its mother's womb, etc.) may be the legatee under a Will.
2. A bequest may be validly made for the benefit of a „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.).

3. A bequest for the benefit of a religious or charitable object is valid. It is unlawful

to make a bequest to benefit an object opposed to Islam e.g. to an idol in Hindu
temple, because idol worship is opposed to Islam.
(A bequest in favor of non muslim is valid if the non muslim is not hostile towards
Islam.)

4. The title to the subject of bequest/will can only be completed with the express or
implied consent of the legatee after the death of the testator. The legatee has the
right to disclaim.

5. A legatee who murders or causes the death of the legator either intentionally or
unintentionally is not allowed to take the Will and generally disentitle to take the
property. However, under Shia law, if a legatee causes the death of the legator
either unintentionally, negligently or accidentally, then he is qualified to take the
property and the Will is treated as a valid Will.

6. A child in a mother‟s womb is treated as a living person and thus, is a competent

legatee under Islamic law under two conditions. Firstly, he must be in existence in
the mother‟s womb at the time of declaration of the Will. Secondly, the child
must be born alive within six months from the date of execution of Will under
Sunni law and within 10 months under Shia law.

7. A Will can be made in favour of joint legatees. Such the legatees are known as
joint legatees. If the share of all the legatees is specified explicitly by the legator
himself under the Will, then there arises no point of confusion regarding the
share. If the share of each legator is not explicitly described, the property is
supposed to be divided equally among the legatees
8. Will of person committing suicide is valid under Sunni Law while under Shia Law, a
will made by a person who has done any act towards the commission of suicide is
not valid, but if the will is made before the doing of any act towards the
commission of suicide, it is valid. In Mazhar Husen V. Bodha Bibi 21 All 91, it was
held that when the deceased first made his will and afterwards took poison, the
will would be considered as a valid one.

Subject-matter of will
Any type of property, corporeal or incorporeal, moveable or immovable, can
constitute the subject matter of the Will. A legator can bequest a property in a Will
only under two conditions-

 If he owns the property at the time of his death.

 The property must be transferable.
A property bequeathed under a Will may or may not exist at the time of execution of
Will but it is mandatory that the bequeathed property must be in ownership of the
legator at the time of his death.. A Will comes into operation after the death of the
legator and the transfer of property to legatee takes place from the date of legator’s
death and not from the date of execution.
Contingent bequest which is conditional on the happening or non happening of an
uncertain event is void. A bequest cannot be made of anything to be produced or
performed in future. If a bequest is made subjected to a condition derogating to the
will, the will be valid and the condition will be void.

Limits matter of will

No Muslim can bequeath more than one-third of the residue of his estate, after the
payment of debts and other charges. When a Muslim dies, his debts and funeral
expenses are to be paid first; thereafter, out of the residue only one-third can be
disposed of by will. To take a concrete illustration, Omar dies leaving Rs 3,500 as his
gross assets. His funeral costs Rs 100 and his debts amount to Rs 400; the balance Rs
3,000. Hence the bequeathable third amounts to Rs 1,000 and he cannot dispose of
more than this amount by will.
Under Sunni Law, where the legatee is one of the heirs of the legator, whether the
property bequeathed is one-third or less, the consent of the other legal heirs of the
legator is a dominant factor in order to establish a valid Will. In Ghulam Mohammed
v. Ghulam Hussain 1932 P.C. 81. - It was held that a bequest in favour of an heir is
not valid unless the other heirs consent to the bequest after the death of the
testator.
In Shia law, in respect of bequest of one-third to an heir, the consent of other heirs is
not required.
A bequest made for pious purposes is valid to the extent or one-third of the property,
both under Sunni as well as Shia law.
In case of a non-heir (stranger) the consent of heirs is not required in both. A Muslim
who does not has any heir may bequest his property to anyone.
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 Succession Act,
1925.

Revocation of will
Muslim law grants an emancipated right to legator exercising which he can revoke
the Will or any part of the Will executed by him anytime. Similarly, he can add
something reasonable to the Will as well. Hadith from Sahih Bukhari: The Prophet
Muhammad (peace be upon him) said, "The will can be changed as long as one does
not die." (Sahih Bukhari, Book 59, Hadith 16)
A legator may revoke the Will either expressly or impliedly.

 Express Revocation
An express revocation may be done in oral or in writing. If a legator bequests some of
his property to a person and by making a subsequent Will he bequeaths the same
property to another person, then the first Will is considered to be revoked
automatically. If legator burns or tears off a Will executed by him, then also the Will
is said to be expressly revoked. It is to be noted that mere denial of a Will is not
sufficient to amount a Will as revoked. Some action must be taken by the legator
which indicates his clear intention for the revocation of the Will.
  Implied Revocation
Any act done by legator contrary to the bequest Will; revoke the Will. In other words,
an act which leads to the annihilation of the subject-matter of the bequest is
considered as an implied revocation of the Will. If a legator executed a Will giving
land to a person and builds a house on the same land, or if he sells or gifts that land
to someone else, then consequently, the Will is said to be impliedly revoked.

Differences between will and gift

Under Muslim law, there are specific differences between a will (wasiyyah) and a gift
(hiba) that are governed by Islamic legal principles. Here are some key distinctions:
Points of Gift Will
Distinction
A gift is a transfer of property A will is a transfer of property
Type which is done immediately. which is done after the death of
the person making the will.

A gift deed cannot be revoked. The A will can be changed or revoked

Revocation person to whom a gift is given as long as the person in whose
becomes the absolute owner. name the will is made, is alive.

A gift requires to be stamped and A will need not be stamped or

Registration registered. registered.

A gift comes into effect A will comes into effect after the
Effect immediately after it is prepared. death of the person making the
will.

No limit as to quantum or Not more than 1/3rd and not to

Limitation beneficiary. heir ( subject to the exemption of
consent by heirs )

Property must exist at the time of Not essential at the time of making
Existence of gift. the will, but must at the time of
property death of the testator.
 The doctrine of Mushaa is The doctrine of Mushaa has no
Doctrine of applicable in case of gift. application in case of will.
mushaa

In gift acceptance by the legatee in In will acceptance by the legatee in

Acceptance necessary. not necessary.

Insanity Gift after the delivery of the The subsequent insanity of the
possession is irrevocable on the testator makes the will void.
ground of insanity.