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Will Under Muslim Law
Will Under Muslim Law
Will Under Muslim Law
‘WILL’ (WASIYAT)
Under Muslim Law
ACKNOWLEDGMENT
This assignment is intended to cover the “WILL (Wasiyat)”. Basic and pre-
requisite information have been included.
In the last but not the least, my sense of gratitude is due to AMITY LAW
SCHOOL, LUCKNOW.
Every effort has been made to avoid errors and mistakes, however their
presence cannot be ruled out.
Animesh Kumar
Index
1. Introduction................................................................................................1
7. Essentials of a will......................................................................................5
9. Bibliography.............................................................................................10
Introduction
The importance of the Islamic will (wasiyya) is clear from the following
two hadith:
"It is the duty of a Muslim who has anything to bequest not to let two nights
pass without writing a will about it." (Sahih al-Bukhari)
"A man may do good deeds for seventy years but if he acts unjustly when he
leaves his last testament, the wickedness of his deed will be sealed upon him,
and he will enter the Fire. If, (on the other hand), a man acts wickedly for
seventy years but is just in his last will and testament, the goodness of his deed
will be sealed upon him, and he will enter the Garden." (Ahmad and Ibn Majah)
The will gives the testator an opportunity to help someone (e.g. a relative need
such as an orphaned grandchild or a Christian widow) who is not entitled to
inherit from him. The will can be used to clarify the nature of joint accounts,
those living in commensality, appointment of guardian for one’s children and so
on. In countries where the intestate succession law is different from Islamic law
it becomes absolutely necessary to write a will.
No specific wording is necessary for making a will. In Islamic law the will
(wasiyya) can be oral or written, and the intention of the testator must be clear
that thewasiyya is to be executed after his death. any expression which signifies
the intention of the testator is sufficient for the purpose of constituting a
bequest.
The wasiyya is executed after payment of debts and funeral expenses. the
majority view is that debts to Allah (SWT) such as zakh, obligatory expiation
etc. should be paid whether mentioned in the will or not. However, there is
difference of opinion on this matter amongst the Muslim jurists.
Every adult Muslim with reasoning ability has the legal capacity to make a will.
An adult for this purpose is someone who has reached puberty. Evidence of
puberty is menstruation in girls and night pollution (wet dreams) in boys. In the
absence of evidence, puberty is presumed at the completion of the age of fifteen
years. The Maliki and Hanbali fiqh also consider the will of a discerning
(tamyiz) child as valid.
Under English Law you must be at least 18 years of age to make a valid will
(similarly in most of the United States of America) unless you are a military
personnel in which case you may make a valid will at the age of 17.
The testator must have the legal capacity to dispose of whatever he bequests in
his will. When making a will the testator must be of sane mind, he must not be
under any compulsion and he must understand the nature and effect of his
testamentary act. The testator must of course own whatever he bequests.
The testator has the right to revoke his will by a subsequent will, actually or by
implication.
In traditional Sunni Islamic law the power of the testator is limited in two ways:
Firstly, he cannot bequest more than 1/3 of his net estate unless the other
heirs consent to the bequest or there are no legal heirs at all or the only
legal heir is the spouse who gets his/her legal share and the residue can be
bequeathed.
Narrated Sa‘d ibn Abi Waqqas (RA): "I was stricken by an ailment that
led me to the verge of death. The Prophet came to pay me a visit. I said,
"O Allah's Apostle! I have much property and no heir except my single
daughter. Shall I give two-thirds of my property in charity?" He said,
"No." I said, "Half of it?" He said, "No." I said, "One-third of it?" He
said, "You may do so, though one-third is also too much, for it is better
for you to leave your offspring wealthy than to leave them poor, asking
others for help..." (Sahih al-Bukhari, Sahah Muslim, Muwatta, Tirmidhi,
Abu Dawud and Ibn Majah.)
Legal heir in this context is one who is a legal heir at the time of death of the
testator.
Narrated Abu Hurayrah (RA): Allah’s Prophet (SAWS) said, "Allah has
appointed for everyone who has a right what is due to him, and no bequest must
be made to an heir. (Abu Dawud). Similar hadith narrated by Abu Umamah
(RA) and reported by Ibn Majah, Ahmad and others.
The legatee must be capable of owning the bequest. any bequest made in favour
of any legal heir already entitled to a share is invalid under traditional Sunni
Muslim law unless consented to by other legal heirs. an acknowledgement of
debt in favour of a legal heir is valid.
If the legatee dies without accepting or rejecting the bequest, the bequest
becomes part of the legatee’s estate according to the Hanafi fiqh because non-
rejection is regarded as acceptance. According to the other three main
Sunni madhahib, the right to accept or reject the bequest passes onto the heirs of
the legatee.
All the Sunni madhahib agree that if the legatee dies before the testator, the
bequest is invalid since a bequest can only be accepted after the death of the
testator.
If there is uncertainty as to whether or not the legatee survived the testator, such
as a missing legatee, the bequest is invalid because the legatee must be alive at
the time of death of the testator for the will to be valid.
If the testator and legatee die together, such as in an air crash and it is not
certain who died first, the bequest is invalid according to the Hanafi, Maliki and
Shafiifiqh. But according to the Hanbali fiqh, the bequest devolves upon the
legatee’s heirs who may accept or reject it.
The executor (al-wasi) of the will is the manager of the estate appointed by the
testator. The executor has to carry out the wishes of the testator according to
Islamic law, to watch the interests of the children and of the estate. The
authority of the executor should be specified. Hanafi and Maliki fiqh state that
the executor should be trustworthy and truthful; the Shafii fiqh state that the
executor must be just. The Hanafi fiqh considers the appointment of a non-
Muslim executor to be valid. The testator may appoint more than one executor,
male or female. The testator should state if each executor can act independently
of the other executor(s).
If one starts acting as an executor, one will be regarded as having accepted the
appointment, both in Islamic and in English law.
The declaration should be relating to the testator's property and the testator
should intend to dispose off his property after his death. If the declaration is not
to take effect or if the testator wanted to carry out the intention made in the
declaration immediately, the instrument will not be a will, the will should be
revocable during the lifetime of the testator. If the instrument is intended to
come into effect with immediate effect and to be final and irrevocable, it will
not be a will.
Execution of will
Every testator, not being a soldier employed in an expedition or engaged in
actual warfare, or an airman so employed or engaged, or a mariner at sea, shall
execute his will according to the rules.
Attestation
'The will shall be attested by two or more witnesses. The attestation by the
witnesses should be by the signatures of the witnesses and not by their mark and
the attestation should be done after the testator has executed the will and not
before. The attesting witnesses need not know the contents of the will and the
testator need not disclose the nature or contents of the document.
Wills by Muslims
Under Muslim Law, every adult Muslim of sound mind can make a will. A
minor or a lunatic is not competent to execute a will. Though under Muslim
Law, a person gets the majority at the age of 15 years, but in India, the case of
will is governed by the Indian Majority Act according to which the minority
terminates at the age of 18 years, but if the guardian has been appointed by the
Court for the minor, the minority will terminate at the age of 21 years. The
legatee can be any person capable of holding property and bequest can be made
to non-Muslim, institution, and charitable purposes. A bequest can be made to
an unborn person and a will in favour of a child who is born within six months
of the date of making the will can be a legatee. But according to Shia Law, a
bequest to a child in the womb is valid, even if the child is in the longest period
of gestation i.e., ten lunar months. The property bequeathed must be capable of
being transferred and the testator should be the owner of the said property. The
property bequeathed should be in existence at the time of death of the testator,
even if it was not in existence at the time of execution of the will. A Muslim
cannot bequest his property in favour of his own heir, unless the other heirs
consent to the bequest after the death of the testator. The person should be legal
heir at the time of the death of the testator. However, under Shia Law, a testator
may bequest in favour of his heir so long as it does not exceed one third of his
estate and such bequest is valid even without the consent of other heirs. The
consent can be given before or after the death of the testator. But if the entire
estate is bequeathed to one heir excluding other heirs entirely from inheritance,
the bequest will be void in its entirety. According to Sunni Law, the consent by
the heirs should be given after the death of the testator and the consent given
during the lifetime of the testator is of no legal effect. Under Shia Law, the
consent by the heirs should be free and a consent given under undue influence
fraud, coercion or misrepresentation is no consent and the person who has given
such consent is not bound by such consent. The consent by the heirs can be
given either expressly or impliedly. If the heirs attest the will and acquiesce in
the legatee taking possession of the property bequeathed, this is considered as
sufficient consent. If the heirs do not question the will for a very long time and
the legatees take and enjoy the property, the conduct of heirs will amount to
consent. If some heirs give their consent, the shares of the consenting heirs will
be bound and the legacy in excess is payable out of the shares of the consenting
heirs. When the heir gives his consent to the bequest, he cannot rescind it later
on.
Principle of rate able abatement in case heirs does not give consent.
Under Hanafi Law, if a Mohammedan bequest of more than one?third of the
property and the heirs does not consent to the same, the shares are reduced
proportionately to bring it down to one?third. Bequests for pious purposes have
no precedence over secular purposes, and are decreased proportionately.
Bequests for pious purposes are classified into three categories:
1) Bequest for faraiz i.e. purposes expressly ordained in the Koran viz. hajj,
zakat and expiation for prayers missed by a Muslim.
2) Bequest for waji-bait i.e. purposes not expressly ordained in the Koran,
but which are proper viz. charity given for breaking rozas.
Under Shia Law, the principle of rate able abatement is not applicable and the
bequests made prior in date take priority over those later in date. But if the
bequest is made by the same will, the latter bequest would be a revocation of an
earlier bequest.
No writing necessary
Under Muslim law, a will may be made either orally or in writing and though in
writing, it does not require to be signed or attested. No particular form is
necessary for making a will, if the intention of the testator is sufficiently
ascertained. Though oral will is possible, the burden to establish an oral will is
very heavy and the will should be proved by the person who asserts it with
utmost precision and with every circumstance considering time and place.
But if the marriage of a Muslim has been held under Special Marriage Act,
1954, the provisions of Indian Succession Act, 1925 shall be applicable and he
cannot execute a will under Muslim law.
Registration of wills
Though it is not necessary to register a will, but the Law recognizes a
Registered will when the execution of a will is disputed and when there is an
unregistered will. The provisions relating to registration of the will have been
given in sections 40 and 41 of the Indian Registration Act. The testator, after his
death, or any person claiming as executor or otherwise under a will, may
present it to any Registrar or Sub Registrar for registration. No time limit has
been prescribed for registering the will and a will may be presented for
registration at any time.' A will presented for registration by the testator may be
registered in the same manner as any other document. A will presented for
registration by any other person entitled to present it shall be registered, if the
registering officer is satisfied
a) that the will or authority was executed by the testator;
c) that the person presenting the will is entitled to present the same.
The registration of will is not the proof of the testamentary capacity of the
testator, as the Registrar is not required to make an enquiry about the capacity
of the testator except in case the testator appears to him to be a minor or an idiot
or lunatic.
Codicil
Codicil means an instrument made in relation to a will and explaining, altering
or adding to its dispositions and shall be deemed to form part of the will. The
codicil is generally made to make slight changes in the will, which has already
been executed. A codicil cannot alter a will more than what is necessary to carry
out the testator's intention as evidenced by the will and the codicil.
Exception to the general rules.- The following are two exceptions to the above
mentioned generals rules:
a) Under Hanafi law, a bequest or more than one-third of the net assets may
be valid, if the heirs, whose rights infringed thereby, give their consent to
the bequest after the death of the testator. In shia law such consent
validates the will whether given before or after the testator’s death
b) 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
heirless person will not, in any way, restrict the right of a person to make
a disposition of his property, as he likes. In other words, Government is
no heir to an heirless person.
Bibliography
Books referred:
Websites referred:
www.islam101.com
www.legallight.in
www.legalaid.c.la
www.lawyersclubindia.com