Introduction

Will means the legal declaration of the intention of a person with respect to his property,
which he desires to take effect after his death. It is a unilateral document and takes effect
after the death of the person making it. It can be revoked or altered by the maker of it at any
time he is competent to dispose of his property.
A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian
Succession Act, 1925. However Mohammedan are not governed by the Indian
Succession Act, 1925 and they can dispose their property according to Muslim Law.
Who can make a will
1. Every person who is of sound mind and is not a minor can make a will.
2. Persons who are deaf or dumb or blind can make a will provided they are able to
know what they do by it.
3. A person who is ordinarily insane may make a will during an interval in which he is
of sound mind.
4. No person can make a will while he is in such a state of mind, whether arising from
intoxication or from illness or from any other cause, that he does not know what he is
doing.
Execution of A Will
Every person, not being a soldier employed in an expedition or engaged in warfare, or an
airman so employed or engaged, or a marine at sea shall execute his will accordingly.
1. He shall sign or fix his mark to the will or it shall be signed by some other person in
his presence and by his direction
2. The signature or mark should be so placed that it shall appear that it was intended
thereby to give effect to the writing as a will
3. The will shall be attested by two or more witnesses, each of whom has seen the
testator sign or affix his mark on the will or Has seen some other person sign the will,
in the presence and by the direction of the testator or Has received from the testator a
personal acknowledgement of his signature or mark, or of the signature such other

person;
Each of the witnesses shall sign the will in the presence of the testator, but it shall not be
necessary that more than one witnesses be present at the same time, and no particular form of
attestation is necessary.
4. Declaration of intention.
WHAT PROPERTY CAN BE DISPOSED BY A WILL
Any movable or immovable property can be disposed of by a will by its owner.
Beneficiary Under A Will
Any person capable of holding property can be devisee under a will and therefore a minor,
lunatic, a corporation, a Hindu deity or any other juristic person can be a devisee.
RESTRICTIONS:
The Indian Succession Act imposes restrictions in certain cases.
1. Transfer to person by particular description, who is not in existence at testator's
death.
Where a bequest is made to a person by a particular description, and there is no person in
existence at the testator's death who answers that description, the bequest is void.
For example, If A bequests 1000 rupees to the eldest son of B. At the death of A, the testator,
B has no son. The bequest is void.
2. Transfer to person not in existence at testator's death subject to prior bequest.
Where a bequest is made to a person not in existence at the time of the testator's death,
subject to a prior bequest contained in the will, the later bequest shall be void, unless it
comprises the whole of the remaining interest of the testator in the thing be queathed.
For example, If property is bequeathed to A for life, and after his death to his eldest son for
life, and after the later's death to his eldest son. At the time of the testator's death, A has no

son. Here the bequest to A's eldest son is a bequest to a person not in existence at the
testators death. It is not a bequest of the whole interest that remains to the testator. The
bequest to A's eldest son for life is void.
3. Transfer made to create perpetuity.
No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the
lifetime of one or more persons living at the testator's death and the minority of some person
who shall be in existence at the expiration of that period, and to whom, if he attains full age,
the thing bequeathed is to belong.
For example, A fund is given to A for his life and after his death to B for his life; and after
B's death to such of the sons of B as shall first attain the age of 25. A and B survive the
testator. The son of B who shall first attain the age of 25 may be a son born after the death of
the testator; and such son may not attain age of 25 until more than 18 years have elapsed
from the death of and B. The vesting of fund may thus be delayed beyond the lifetime of A
and B and the minority of the sons of B. The bequest after B's death is void.
4. Transfer to a class some of whom may come under above rules.
If a bequest is made to a class of persons with regard to some of whom it is inoperative by
reasons of the fact that the person is not in existence at the testator's death or to create
perpetuity, such bequest shall be void in regard to those persons only and not in regard to the
whole class.
A fund is bequeathed to A for life, and after his death to all his children who shall attain the
age of 25. A survives the testator, and has some children living at the testator's death. Each
child of A's living at the testator's death must attain the age of 25 (if at all) within the limits
allowed for a bequest. But A may have children after the testator's decease, some of whom
may not attain the age of 25 until more than 18 years have elapsed after the decease of A. the
bequest to A's children, therefore, is inoperative as to any child born after the testator's death;
and in regard to those who do not attain the age of 25 within 18 years after A' death, but is
operative in regard to the other children of A.

5. Transfer to take effect on failure of prior Transfer.

Where by reason of any of the rules contained in sections 113 and 114 and bequest in favour
of a person of a class of persons is void in regard to such person or the whole of such class,
any bequest contained in the same will and intended to take effect after or upon failure of
such prior bequest is also void.
A fund is bequeathed to A for his life, and after his death to such of his sons and shall first
attain the age of 25, for his life, and after the decease of such son to B. A and B survive the
testator. The bequest to B is intended to take effect after the bequest to such of the sons of A
as shall first attain the age of 25.The bequest to B is void.
6. Effect of direction for accumulation.
Where the terms of a will direct that the income arising from any property shall be
accumulation either wholly or in part during any period longer than a period of eighteen
years from the death of the testator, such direction shall, save as hereinafter provided be void
to the extent to which the period during which the accumulation is directed exceeds the
aforesaid period, and at the end of such period of eighteen years the property and the income
thereof shall be disposed of as if the period during which the accumulation has been directed
to be made had elapsed.
However, this will not affect any direction for accumulation for the purpose ofi.

The payment of the debts of the testator or any other person taking any
interest under the will; or

ii.

The provision of portions for children or remoter issue of the testator or of

any other person taking any interest under the will; or

iii.

The preservation or maintenance of any property bequeathed; and such

direction may be made accordingly. This rule provides that accumulation of
income arising from any property bequeathed should come to an end or be
determinable on the beneficiaries attaining vested interests within the
perpetuity period. If the direction in the will for accumulation exceeds 18

years, the direction will be void to the extent of the period which exceeds 18
years. At the end of 18 years, the property and the income will be payable as
per directions in the will. However, this rule is not applicable where the
direction in a will is for the purposes of payment of the testator's debts or of
any other person taking interest under the will or for the raising portion for
any child, children or remoter issue of the testator or for preserving or
maintaining houses and tenements or charity.
Revocation of a will/Loss of a will
A will can be revoked in the following manner
1. By execution of a subsequent will
2. By

some

writing

and

declaring

an

intention

to

revoke

the

will

By burning of the will

3. By tearing of the will
4. Otherwise destroying the will
When a will is evoked by a subsequent will, the will so revoked will have no operation
LOSS OF A WILL
If a will is lost it will be presumed to be revoked. If the will was seen with the testator, but
could not be found after the death testator, it will be presumed that the same has been
revoked by the testator by destroying the same.
Registration
The registration of a will is not compulsory. However, the testator may register the will or
deposit the will in a sealed cover with the Registrar. There is no time limit for registration.

WILLS UNDER MUSLIM LAW

Introduction: - When a person dies his/her property devolves upon his/her heirs. A person
may die with or without a will (Testament). If a person dies leaving a will i.e. dies intestate,
the property is distributed among his/her heirs according to the rules of Testamentary

Succession. In other words, the property is distributed as per the contents of the testament or
will. On -the other hand. if a person (lies leaving no testament (will) i.e. dies intestate, the
rules of intestate Succession are applied for distribution of the property among heirs.
Will - Meaning:- A 'Will or Testament' is a document or an instrument. which declares or
contains the intention of the owner of the property as to how his property is to be disposed of
(distributed) after his/her death. The will takes effect on the death of the person making it. It
can be revoked by the maker, before his death.
Testator:-- The person, who makes/creates a will is called 'Testator'.
Legate:-- The person/persons, in whose favour, the will is created is called 'Legatee',
Legacy:-- The subject matter of the will is called 'Legacy'. It is the property to be distributed
among the heirs.
Executor:- The testator, while executing the will, may appoint a person to execute the will in
accordance with its contents (after his death). He is called 'Executor'.
In the absence of the appointment of Executor by the testator, the Court may appoint a person
called 'Administrator' to execute thee will.
Codicil:- Codicil is an instrument math in relation to will. It is a part of the will.
Abatement of Legacies:- When a testator bequeaths more than one third of the property, and
the heirs refuse to give consent, it is to be adjusted accordingly.
Lapse of Legacy:- If the Legatee does not survive, the bequest (Property under will) is
distributed as if there is no will.
Definition:- "A will or Wasiyat" is defined as 'an instrument by which a person makes a
disposition of his property to take effect after the death and which is in its own nature
ambulatory and revocable during his life'.
Essentials/Requisites of will: - A will to be valid, the following conditions are to be
satisfied.
1. Capacity./Competence of Testator;
2. Competence of Legatee;
3. Subject Matter:
4. Testamentary Capacity.

1. Capacity of Testator:-- According to Muslim Law, any person, who is a major and is of
sound mind can make a will. However, a minor can make a will subject to ratification on
attaining majority. According to Muslim Law, the age of Majority is 15 years, but it is not
applicable to the wills in India.
2. Competence of Legatee:-- Any person having capacity to hold the property can be a
legatee. The Legatee may be a Muslim or a Non-Muslim. man or woman a major or a minor
or even a child in the womb provided the child is born within 6 months of the death of the
testator.
3. Subject flatter:- A Muslim can bequeath any property movable or immovable, corporeal
or incorporeal, which must be in existence and transferable at the time of testator's death.
4. Testamentary Capacity:- A Muslim cannot dispose of by will more than 1%3 of the net
assets after allowing (meeting) for the debts and funeral expenses of the testator (under both
Hanafi Law and Shia Law). The remaining 2/3 share should be made available for
distribution amongst the heirs. Even for bequeathing the 1/3rd share, the Muslim has to
obtain the consent of the other heirs. Relevant Case on this point is: GULAM MD.vs.
GULAM IIUSSAIN, AIR 1932 PC 81 ... Held in this case that, bequest in favour of heirs
without the consent of other heirs is invalid.
An heirless Muslim can bequeath his entire property. In case, his wife, is the only heir, he can
bequeath all his properties minus the share of his wife (as per Koranic table).
Bequeathable One-third:-- It means a third of the estate of the testator as is left after the
payment of the funeral expenses, other charges and debts of the deceased (testator). All
schools of Muslim Law except the Ithana Ashari School lay down that bequest of more than
one third unless consented to by the heirs is invalid or a custom or usage so permits.
Formalities of Wills:-- Muslim law requires no specific formalities for creation of a will. It
may be made in writing or oral or even by gestures. Though it is in writing, it need not be
signed by the testator and attested by the witnesses (Ramjilal vs. Ahmed, AIR 1952 MP 56).
It is necessary that the intention of the testator should be clear and unequivocal.
Construction of Will:- A Muslim will is to be construed in accordance with the rules of
construction of the will as laid down in Muslim Law. Will is a document created by any
person during his life time, which operates after his death. The contents of the will arc to be
implemented to fulfil the intention or desire of the testator after his death. Sometimes, the
contents may not be clear. In such a case, it may be interpreted as per the option of the heirs.

For instance, if the testator, to his will, bequeaths one house to heir A and the other for heir B
without any specification. Then, the heirs have to make necessary arrangement.
Revocation of Will:- A Muslim will or any part thereof may he revoked by the testator at any
time before his death. The revocation may be express (oral or in writing) or implied. A will
may be expressly revoked by tearing it off or by burning it. Any act, which results in the
extinction of the subject matter or proprietary rights of the testator will impliedly revoke the
will. For instance, if the testator transfers the same property by sale or gift subsequently to
another. it amounts to implied revocation.
DEATH

BED

GIFT

(MARZ-UL-MIAUT)

(Short Notes)
When a person creates/makes a gift out of an apprehension (fear) of imminent death and dies
later, it is called "Death-Bed-Gift". In other words, if a person makes a gift during illness and
dies later, it is called Death-Bed-Gift or Matz-UI-Maut. It is subject to two restrictions: (i)
disqualification of heir; and (ii) property disposed of should not exceed 1 /3 of the net assets.
These restrictions may he relaxed with the consent of the heirs.
The Death-Bed-Gift is valid only when the donor dies of illness during which the gill was
made.
Essentials of Death-Bed-Gift (Marz-U1-Maut):
I . There must he an apprehension as to immediate death.
2. To effect the transfer of property, by way of gift in anticipation of death.
3. Mere apprehension of death as to old age is not sufficient.
Section 129 of T.P. Act deals with Death-Bed-Gift or Donatio Mortis Causa. Similarly,
Section 191 of the Indian Succession Act. 1925 deals with Death-Bed-Gift with regard to
movable property.
With regard to the restrictions of making a death-bed-gift by a Muslim, the rules with regard
to disposition to the extent of 1/3 td' net assets (after meeting debts and funeral expenses of

testator) and also to obtain the consent of other heirs, are applicable in the Case of Mart-1JIMaui als
Christian LAW
Testamentary Succession Among Indian Christians
A will is the expression by a person of wishes which he intends to take effect only at his
death. In order to make a valid will, a testator must have a testamentary intention i.e. he must
intend the wishes to which he gives deliberate expression to take effect only at his death.
Testamentary Succession is dealt with under Part VI of the Indian Succession Act, 1925.
According to S. 59, every person of sound mind, not being a minor, may dispose of his
property by will. The explanations to this Section further expand the ambit of testamentary
disposition of estate by categorically stating that married women as also deaf/dumb/blind
persons who are not thereby incapacitated to make a will are all entitled to disposing their
property by will. Soundness of mind and freedom from intoxication or any illness that render
a person incapable of knowing what he is doing are also laid down as prerequisites to the
process.
Part VI of the Act encompasses 134 Sections from S. 57 to S. 191, that comprehensively deal
with all issues connected with wills and codicils, and the making and enforcing of the same,
including capacity to make a will, formalities needed for wills, bequests which can be validly
made etc.