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FAMILY LAW ASSIGNMENT

LAW OF WILLS

Submitted by: Syed Miran Ahmad

2nd Year (IV Semester)(S/F)

Roll no. 60

Submitted to Prof. (Dr) Kehkashan Y. Danyal

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Contents
Acknowledgement .................................................................................................................................. 3
INTRODUCTION ....................................................................................................................................... 4
WILLS – MEANING AND NEED................................................................................................................. 5
TESTAMENTARY SUCCESSION UNDER MUSLIM LAW ............................................................................. 7
CONCLUSION......................................................................................................................................... 12
BIBLIOGRAPHY ...................................................................................................................................... 13
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Acknowledgement

In preparation of my assignment, I had to take the help and guidance of some respected
persons, who deserve my deepest gratitude. I would like to thank Prof. (Dr) Kahkashan
Y. Danyal for being a guiding force throughout the course of this submission and being
instrumental in the successful completion of this assignment. As the completion of this
assignment gave me much pleasure. I would also like to expand my gratitude to all those
who have directly or indirectly guided me in writing this assignment
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INTRODUCTION

Succession is a derivative of the word succeed (to inherit) and refers to the order in which or
the conditions under which one person after another succeeds to a property. It implies the act
of succeeding or following, as of events, objects, places in a series, the transmission or passing
of rights from one to another. In every system of law provision must be made for a readjustment
of things or goods on the death of the human beings who owned and enjoyed them. The rules
of succession are, in modern systems of law, subject to many rules. There can be no doubt,
however, that these rules primarily are the characteristics of the social conditions in which that
individual lived. They represent the view of society as to what ought to be the normal course
of succession in the readjustment of property after the death of a citizen.

Black’s Law Dictionary defines inheritance as “receipt of a property from an ancestor under
the laws of intestacy” i.e. “by bequest or device.”

“the law of inheritance comprises of rules which govern devolution of property, on the death
of the person, upon other persons solely on account of their relationship with the former.”1

Succession can be of 2 types – testate and intestate.

Intestate Succession is used to denote the laws relating to inheritance. The property of a person
, on his or her death, in absence of instructions left by him or her with respect to its devolution,
devolves in accordance with the law of intestate succession to which the deceased was subject
to at the time or his or her death.

Testamentary succession on the other hand refers to devolution of property through a testament
or a Will. A Will that is capable of taking effect in law governs succession to the property of a
person after his or her death in accordance with the rules laid down in the laws governing
testamentary succession to the property of a person to which he or she was subject at the time
of his or her death. Diversity prevails in the laws of testamentary succession also, yet it is not
as varied as in case of laws of inheritance or intestate succession.

1
Mulla, Hindu Law (2), (Butterworths, New Delhi, 2001), 277
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WILLS – MEANING AND NEED

“The instincts and affections of mankind, in the vast majority of instances, WILL lead man to
make provisions for those who are nearest to them in kindred and who in life have been the
objects of their affections.”

A Will is a document which ensures that your wishes with respect to your assets and property
are followed, after your death. A will or a testament is a declaration of the intention of the
person making it with regard to the matters which he wishes to take effect upon or after his
death while a codicil is a document which alters any one or more provisions in the will or adds
any provision in the will or rectifies the mistakes, if any, in the will. It is supplemental to and
considered as annexure to a will previously made. The concept of wills emanated from the right
of absolute ownership in one's property. When a property holder died, leaving heirs and no
will, it leads to unnecessary family squabbles. Wills and codicils came to the rescue and aided
in a fair distribution of property, as per the prerogative of the executer of the will. Wills were
a medium to distribute the property acquired by the testator in his or her life through personal
preferences and minimal interference of law (as in case of Muslim Personal Law which allows
only one-third of the testator's property to be divested through wills).

S. S.2(h) of Indian Succession Act, 1925 provides that 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 Will has been defined in Corpus Juris Secundum as A ‘Will’ is the legal declaration of a
man’s intention, which he wills to be performed after his death, or an instrument by which a
person makes a disposition of his property to take effect after his death.

A person can ensure as to how his property should devolve and to whom it shall devolve, after
his death, through a Will. If a person dies without leaving behind his Will, his property would
devolve by way of law of intestate succession and not testamentary succession (i.e. in
accordance to the Will) Hence, it is preferable that one should make a Will to ensure that one's
actual intension is followed and the property is devolved accordingly. Will is an important
testamentary instrument through which a testator can give away his property in accordance to
his wishes.

The right to alter the will at any point time before the execution rests with the testator. A will
may be a simple form of expression, or a complicated disposition. In either case, the beneficiary
must prove it by attesting witnesses, removing all suspicious circumstances surrounding its
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execution. The essence of every Will is that it is revocable during the lifetime of the testator.
A Will can be made at any time in the life of a person. A Will can be changed several times
and there are no legal restrictions as to the number of times it can be changed. It can be
withdrawn at any time during the lifetime of the person making the Will. A Will has to be
attested by two or more witnesses, each of whom should have seen the testator signing the Will.

The essential features are:

1. Legal declaration: The documents purporting to be a will, or a testament must be legal, i.e.
in conformity with the law and must be executed by a person legally competent to make it.
Further the declaration of intention must be with respect to the testator’s property It is a legal
document, which has a binding force upon the family.

2. Disposition of property: In a Will, the testator bequeaths or leaves his property to the person
or people he chooses to leave his assets/belongings. A Hindu person by way of his Will can
bequeath all his property.

3. Takes effect after death: The Will is enforceable only after the death of the testator

Under section 18 of the Registration Act the registration of a Will is not compulsory. Also, the
SC in Narain Singh v. Kamla Devi2 has held that mere non-registration of the Will an inference
cannot be drawn against the genuineness of the Will. However, it is advisable to register it as
it provides strong legal evidence about the validity of the Will. Once a Will is registered, it is
placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed,
mutilated, or stolen. It is to be released only to the testator himself or, after his death, to an
authorized person who produces the Death Certificate

Since a testamentary disposition always speaks from the grave of the testator, the required
standard of proof is significantly high. The initial burden of proof is always on the person who
propounds the Will.

2
AIR 1954 SC 280
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TESTAMENTARY SUCCESSION UNDER MUSLIM LAW

Wasiyat-Nama or Will-The Primary Instrument of Muslim Testamentary Succession.

“A will from the Muslim point of view is a divine institution since its exercise is regulated by
the Quran. It offers to the testator the means of correcting to a certain extent the law of
succession…of recognizing the services rendered by a stranger, or the devotion to him in his
last moments…”

Will (wasiyat) 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 death3. The Hedaya says that analogy would
suggest that wills are unlawful, and they are lawful on a favourable construction. The term
“wasiyat” means an endowment with the property of anything after death 4. To bequeath is, in
the language of law, to confer a right of property in a specific thing, or in a profit or advantage
in the manner of gratuity postponed till after death of the testator5.

Tayyabji6 defines it as a legal declaration of intention of a Muslim with respect to his property
which he desires to be carried into effect after his death. It is also defined as a transfer of
ownership for no consideration to take effect after death.

The word wasiyat also means a moral exhortation, means a declaration in compliance with
moral duty of every Mussalman to decide for the distribution of his property. Thus the Muslim
law of wills presents a compromise between two opposite tendencies- namely, one, not to
disturb or interfere with the divine law of distribution of property after death, and two, the
supposed moral duty of every Muslim to make arrangements for the distribution of his property
within prescribed limits. According to Fyzee the Muhammadan sentiment is in most cases
opposed to the disposition of the property by will, and yet it is a moral exhortation, it is thus a
reconciliation between the dual insistence on moral exhortation as well as legal rectitude. The
will of a Muslim is governed in India subject to the provision of the Indian Succession Act,
1925, by the Muhammadan Law.

3
Section2(h), Indian Succession Act, 1925
4
Asaf A. A. Fyzee, Outlines of Muhammadan Law (Oxford Univ Pr (Txt); 5 edition (30 September 2008)
5
Ibid
6
F.B. Tayyabji, Muhammadan Law, 4th edn., Bombay: N.M. Tripathi Private Ltd., 1968, p. 754
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The Muslim testamentary succession is entirely governed by the Muslim Personal Law which
covers the powers to make the will, the nature of the will, the execution procedure, conditions
of validity etc. The term ‘wasiyat' means an endowment with the property of anything after
death. To bequeath it, in the language of law, to confer a right of property in a specific thing,
or in a profit or advantage in the manner of gratuity postponed till after death of the testator.
The document containing the ‘will' is the wasiyat-nama. A wasiyat can be made orally or in
writing in which case it does not have to be attested. Though it is in writing, it need not be
signed by the testator and attested by the witnesses. The option of revocation or modification
in the will is available to the testator in his lifetime. The essential condition for a valid will in
Muslim law (as that in the Hindu testamentary succession) is that only property with absolute
ownership of the testator can be bequeathed. A bequest which is contingent, or conditional or
in the future or is alternative to another, pre-existing one, would be void.

The qualifications for a valid will under Muslim Personal Law

The essential requisites of a valid will, under Mohammedan Law are as follows:

1. The testator must be competent to make the will.

2. The legatee must be competent to take the legacy or bequest
3. The subject of bequest must be a valid one
4. The bequest must be within the limits imposed on the testamentary power of a Muslim

Firstly, the testator should be a major. According to Muslim beliefs, the age of majority is
attained at puberty, in absence of signs of which, it is assumed to be fifteen years. However,
this is not applicable in India and the age of majority remains as stated in the Indian Majority
Act. Secondly, the testator should be in legal capacity to create a will, bequeathing only that
which is his own, and not under any kind of fraud, coercion, or influence, with volition. He
should be of sound mind while creating the will and should continue to be so subsequently. In
Also in Muslim Personal law, a person who has attempted suicide cannot thereafter make a
will, and if he does, the will shall be considered void. The Courts however, have circumvented
this rule as there have been instances where court has regarded the will made by a Muslim who
subsequently poisoned himself as valid as he had contemplated suicide before creating the will,
but not attempted it.
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Restrictions on testamentary capacity of Muslims:

Islam recognizes the indispensable necessity that a man should have the power of making
bequests. This however does not imply that he has the power to encroach upon the share of his
legal heirs as stated in the holy Quran. Quoting Ameer Ali, “the Prophet has declared that
power should not be exercised to the injury of lawful heirs”. Hence there are restrictions
imposed on the testamentary capacity of Muslims.

Muslim testamentary capacity is regulated in two ways:

1. The One third rule:

This rule states that a Muslim cannot make bequest of more than one-third of his net property,
after the discharge of debts and funeral expenses if there are heirs present. Even for bequeathing
the 1/3rd share, the Muslim must obtain the consent of the other heirs. 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.

2. The consent of the heirs to confer in excess of one-third through will:

As mentioned above, a Muslim must obtain consent of all the surviving heirs to devolve
property in excess of one-third through will. This rule is in place to ensure that the heirs have
voluntarily consented to the infringement of their right in the testator's property and are not
wronged in anyway. Such consent may be through words or implied conduct, but not through
silence

Another limitation on the testamentary capacity is that this power should not be used to benefit
one heir, unless consented by other heirs. In the absence of such approval, the will unjustly
enriching one heir over all others shall not be recognized as a valid will.
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Wills During Death-Illness

A gift without consideration made in marz-ul-maut (death illness) takes effect as a will. Under
Hanafi law, it takes effect to the extent of bequeathable third, if it is not in favour of the hires,
and the possession has been taken by the donee. Under Ithna Ashari (Shia) law, it takes effect
to the extent of 1/3, even if it is in favour of heirs, provided possession is transferred. According
to Fyzee, a donation mortis causa may be described as a gift of an amphibious character, not
exactly a gift, nor exactly a legacy, but partaking of the nature of both; for in Mohammadan
law such a gift is governed by rules deduced from a combination of two branches of law- the
law of gifts and the law of wills. To constitute marz-ul-maut, there must be:

1. Proximate danger of death

2. Apprehension in the mind of the sick

3. Some external indicia, like inability to attend to routine work, etc.

But nothing is conclusive; it is a question of fact. The question of apprehension is of extreme

importance; it is essential that the gift should be made under pressure of the sense of the
imminence of death. According to the Bombay High Court the crucial test of marz-ul-maut is
the subjective apprehension of death in the mind of the donor; and this is to be distinguished
from the apprehension caused in the mind of others7. The Fatimid authorities lay down the
salutary rule that for healthy man, it is prudent to make a will; but, for a man who is ill, it is
obligatory.

A gift made during marz-ul-maut is subject to all the conditions and formalities prescribed in
Muslim aw for gifts inter vivos. Thus, transfer of possession is a must, otherwise the gift fails.
Similarly, a gift by way of will during death-illness, must comply with the two conditions- the
limit of one-third, and if made to an heir- the requirement of the consent of others heirs. Further,
the peculiarities of the Shia and Sunni laws also apply. In Commissioner of Gift Tax, Ernakulam
v. Abdul Karim Mohd.8, the facts were- a Muslim executed a document styled as “settlement
will” gifting certain movables to the assesse. The gift was made when the donor was seriously
ill and apprehending his death. Possession was delivered to the donee before death. The donor
died within six weeks of executing the document. The assesse claimed that this was a gift
during marz-ul-maut and as such exempted from gift tax under Section 5(1)(xi) of the Gift Tax

7
Safia Begum v. Abdul Rajak, (1944) 47 Bom LR 381, 384
8
(1991) 3 SCC 520
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Act. The Supreme Court held that in view of the serious illness of the donor and his state of
mind at the time of making the gift- the gift was in contemplation of death. It rejected the
commissioner’s contention that it was a gift inter vivos simpliciter9.

9
V.P. Bharatiya(Editor), Syed Khalid Rashid's Muslim Law, (Eastern Book Co; 4th Revised edition (20 April
2004)
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CONCLUSION

The 'Muslim Will' Law is different from the law governing wills of Hindus or wills made under
the Indian Succession Act, 1925. The law of Wills under Muslim law as discussed above is
derived mainly from Hedaya, the Holy Quran, custom of the Prophet and different case laws.
Testamentary disposition of property is divine in nature and draws on the Quran. The law is
unique as:

1. It puts a limit on how much can be bequeathed.

2. To all whom it can be made.

3. No particular formality required.

It is correct that the general rule under Muslim personal laws in India is that a Muslim may, by
his will, dispose only up to one-third of his property which is left after payment of funeral
expenses and debts without the consent of his heirs. The remaining two-thirds of the testator’s
property must go to those who are his heirs at the time of his death. However, the above
restriction on disposition of property by will do not apply to a Muslim whose marriage is
solemnized under the provisions of the Special Marriage Act, 1954 (instead of Muslim personal
laws).
A Muslim will or any part thereof may be revoked by the testator at any time before his death.
The revocation may be express (oral or in writing) or implied. 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. Wills under Muslim law is a complex concept mainly
because of different restrictions on bequest but is also unique in it and not surprisingly, it has
preserved itself since its initiation without any major change.

It would also be open to a Muslim to transfer his entire property during his lifetime by way of
a gift to any person unless the gift is a death bed gift. It is regarded under Muslim laws to be a
malady which induces an apprehension of death in the person suffering from it and which
eventually results in his death. A gift made by a person suffering from death illness cannot take
effect beyond one-third of the estate of such donor after payment of funeral expenses and debt,
unless the heirs of the donor give their consent after the death of the donor to the excess taking
effect.
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BIBLIOGRAPHY

1. BOOKS:

S.NO. TITLE
1. Asaf A. A. Fyzee, Outlines of Muhammadan Law (Oxford Univ Pr (Txt); 5 edition
(30 September 2008)
2. M. Hidayatullah and Arshad Hidayatullah, Mulla Principles of Mahomedan Law,
(Lexis Nexis Butterworths Wadhwa Nagpur; Nineteenth edition (2010))
3. V.P. Bharatiya(Editor), Syed Khalid Rashid's Muslim Law, (Eastern Book Co; 4th
Revised edition (20 April 2004)
4. Dr. Paras Diwan, Muslim Law in Modern India, (8th Edition,Reprint 2008)
5. F.B. Tayyabji, Muhammadan Law ( 4th edn., Bombay: N.M. Tripathi Private Ltd.,
1968)
6. Tahir Mahmood, The Muslim Law of India (Lexis Nexis Butterworths, 3rd edition,
2002)

2. STATUTE:

S.NO TITLE
1. The Indian Majority Act, 1875. (No. 9 of 1875)
2. Indian Succession Act, 1865(10 of 1865.)
3. Muslim Personal Law (Shariat) Application Act, 1937. (Act No. 26 of 1937)