Testacy under Muslim Law A gift inter vivos effected by an Arabic document known

as ‘nasr’ executed and conforming to the Wills Ordinance

The formal attestation and execution of a Muslim Will
No 3 to that the testatrix could not exceed her power of
are determined by the provisions of the Wills Act.
disposal of more than one third under Mohammadan
Failure or inattention to these formalities may render a Law, was held to be a valid testamentary document.
Will invalid.
The validity of will depends on the governing law
The testamentary powers of disposition of property in a
Ooi Siew Hong v Ooi Kim Lan
Muslim Will are governed by Islamic law.
Mohammadan law should determin all the incidents
Validity of a Muslim Will
affecting immovable within a Mohammadan State.
General Rule:
Sheriffa Fatimah v Syed Allowee
1. Any person above the age of majority of sound
The COA affirmed the decision of the court below that the
mind and who has possessions to dispose can
validity of will disposing of immovable property must be
make a will.
decided by the law of the country where the property is
2. Any person who has property which he entitled
situated.
or will become entitle, can make a will
Shaik Abdul Latif v Shaik Elias Bux
Re Goods of Che Teh
The devolution of immovable property of deceased is
A married woman had by Will directed her executrix to
governed by the, lex situs=the law of the place where the
dispose of certain property, and after her death the
property situated
executrix obtained probate.
While the distribution of the movable property of a
The husband of deceased took out an action to call on the
deceased depends on, lex domicilii=the law of the
executrix to show cause why the probate should not be
person’s domicile.
set aside, because the assent of the husband(Plaintiff)
ought to have been obtained before she made the will. In this case the deceased was a British Mohammadan
who acquired domicile in FMS, is governed by
Held: Although the Will of a married woman not
Mohammadan law as administered in the FMS =
possessed of a separate estate and not exercising power,
testamentary powers under Islamic Law applied.
is not valid unless assented to by her husband, in this case
there was, however, slight evidence of assent to be It is unlawful for a Muslim to make a bequest to benefit
sufficient = the husband was present at the time the an object opposed to Islam – where Muslim leaves to a
executrix applied for probate and he did not object stranger by will a house exceeding in value the
thereto. bequeathable one-third of his estate, and his heirs does
not consent, the bequest would be void.
Plaintiff’s action was dismissed.
Attestation of Wills
A Will does not take effect until the death of the testator
– unless a contrary intention is shown in the Will. Gift by Will to attesting witnesses or their spouses are
void although the will may be valid (section 9)
The Goods of Hajee Mohamed Thaib
Kulsome Bee,deceased.
The document referred to the third party as ‘ attorney’
rather than as executor, and since the document from it The plaintiffs failed to discharge the burden disproving
express terms took effect from the date of execution, x that they signed as attesting witnesses and the gifts to
from the date of the death of the couple, it was for all them were held null and void.
intents and purposes an informal declaration of a trust
Where the testator has expressed the intention of
and not a will.
making a gift of his personal estate to one who upon his
Fatimah Al Tway death becomes his executor, the intention continuing
unchanged, the executor is entitled to hold the property
for his own benefit.
Re Aljofri
Plaintiff had not discharged the onus upon him to prove
that there was a valid gift of land to him by the deceased.
He had only proved that the house standing on the land
in which he was staying was built with money belonging
to him.
Undated will
Katchi Fatimah v Mohamed Ibrahim
Although the attesting witnesses could not remember the
exact date of execution of will, their testimony that the
will was executed during the month of Ramadhan in 1957
was sufficient.
Revocation Of Will
1. Where a testator makes a Will and then marries
= will revoked by the marriage. However, if the
Will is made in contemplation of a particular
marriage which take place in due course, even in
a first, second or subsequent marriage of a
person practicing polygamy, the will is not
revoked (section 12).
2. A Will is revocable. It may be revoked at any time
even during the last illness of the testator. The
revocation may be either express or implied. It is
express when the testator revokes it in express
terms. It is implied when the testator indicates
by his conduct or subsequent acts that he does
not intend to maintain the legacy like [an]
addition to the subject of the bequest or
extinction of the proprietary right of the
testator.
Invalidation of Will
The testator must be:
a) In the full possession of his senses at
the time. A will made by an insane
person is not valid - unless the will was
made when the person was
experiencing a sane interval
b) he must be of the age of majority
c) he must not be indebted to an extent
that his debt is equivalent in value to his
whole property.
d) he must not be acting under
compulsion or under influence or in
jest.
e) he must be a free person.
A bequest can be only to the extent of a third of the
testator’s property but not to any further extent.
A bequest to any amount exceeding a third of the
testator's property is not valid.
In proof of this is the Hadith as reported by Abu Wakas:
“In the year of the Conquest of Mecca, being taken so
seriously ill that my life was despaired of, the Prophet of
God came to pay me a visit of consolation. I told him that
by the blessing of God [I had] a great estate but no heir
except a daughter, I wish[ed] to know if I might dispose
of it all by will.
He replied, 'No' and when I went on asking if I might
bequest two-thirds or one-half' he replied again in the
negative, but when I asked,”If I do so to the extent of
one-third, he answered, 'Yes, you can bequeath one-
third of your property by will, and a third part to be
disposed of by will is a great portion; and it is better that
you should leave your heirs affluent than in a state of
poverty which might oblige them to beg of others."
According to all schools of Muhammadan Law, a bequest
to any one of the heirs is not valid without the consent
of the others.
The Prophet had said, "God has allotted to every heir his
particular right. And that a bequest to particular heirs is
unjust."
Under the Shariat it is advisable not to make a bequest if
the heirs be poor and the particular portions to which
they are entitled in inheritance are not going to enrich
them.
God has said in the Quran, “The exertion of generosity
towards relations is more laudable than towards
strangers."
Amanullah bin Haji Hassan v Hajjah Jamilah bte Sheik
Madar
Facts: two will was made the 1968 will, and 1961 will.
Whether both of them valid.
Held: The 1968 will of the testatrix made by her when she
was in coma during an illness was not validly made.
Even if it was validly made, it would be void because it Issue: whether the money payable under the policy
purported to dispose of more than one-third of the estate belonged to her beneficially or formed part of the estate
and purported to benefit one of the testator’s heirs. to be distributed among the heirs.

However, another Will made by the testatrix in 1961, was
validly made during a sane interval, and it did not
contravene the Muslim Law and was admitted to
probate.
Wakafs
Under Muslim law, a Wakaf or trust may be created with
the custodian or trustee having rights in perpetuity – the
English rule against perpetuities did not extend to wakaf.
Re Dato Bentara Luar
Held: By virtue of s 23 of the Civil Law Act, as the policy
assurance was effected by the assured of his own life and
expressed to be for the benefit of his wife, the moneys
payable under the policy did not form part of the estate
of the deceased.
So it is lawful for a Muslim to alter the prescribed shares
of his heirs by disposing outright during his lifetime part
or whole of his property to a favoured wife, either
directly or by way of gift inter vivos or indirectly through
trustee.

Held: A wakaf was valid. The wakaf was created before

the English rule against perpetuities was not applied to
Muslims in Johore. And even if it was applicable, it was
not applied to Muslims because matters of Muslims have
always been governed by Muslim law and Malay custom.

Statutory Restrictions

Statutory Restrictions = restriction imposed by statute.

Malay Reservation Enactments prohibit the transfer of

any Malay Reservation Land to non-Malay.

Customary Tenure Enactment(N9) Adat perpateh – all

title which refer to land owned by a female member of
the clan are endorsed as such = barred to subsequent
dealing & restrict the transferability to members of
particular clan.

Testacy under Muslim Law

The Islamic law as to the testamentary dispositions not

exceeding one-third of the estate of the deceased is
applicable.

Re Ismail bin Rentah

Held: the letter of nomination of the deceased’s daughter

to receive the deceased’s share of interest as a member
of Malay Servants’ Co-Operative Society when there were
other beneficiaries, was governed by Muslim law on Wills
and as such bequest was bad as it was made to a single
heir when the others had not consented it.

However, in Re Man Bin Mihat

The deceased had by an instrument named his wife as

beneficiary to an insurance policy.