What are circumstances in which one can do will and interpret the situation through

case laws? Discuss its legal procedure as well

(Assignment 2)

Course: Land laws

Submitted to: Ms. Munazza

Submitted by: Fehmida kanwal

(Registration No: LLB-2017-05)

Semester: LLB-IV (2017-2022)

Spring 2020

Date of Submission: April 25, 2020

Department of Law

Fatima Jinnah Women University, Rawalpindi

Contents
1. Background of will in Islam. ............................................................................................................................................. 1
2. What is a will? .................................................................................................................................................................. 1
3. Circumstances in which one can create will .................................................................................................................... 2
3.1 The rukn( essential element ) of wasiyyah ................................................................................................................ 2
3.2 Requisites of a Valid Will ............................................................................................................................................ 2
3.3 Testator and his Competence (Who can make Will?) ................................................................................................ 3
3.4 Legatee and his Competence (To whom Will can be made?) .................................................................................... 4
3.5 Testamentary Power and its Limits (Bequeath able one-Third) ................................................................................ 4
4. Legal formalities to create a will ...................................................................................................................................... 5
4.1 In writing .................................................................................................................................................................... 5
4.2 Signed ......................................................................................................................................................................... 5
4.3 The testator must have intended to give effect to his will by his signature .............................................................. 6
4.4 In the presence of a witness ...................................................................................................................................... 6
4.5 Each witness must attest and sign the Will, or acknowledge his signature, in the presence of the testator. .......... 6
4.6 Testing clause ............................................................................................................................................................. 7
4.7 Codicil ......................................................................................................................................................................... 7
5. Case law ........................................................................................................................................................................... 7
5.1 GHULAM ALI and 2 others V Mst. GHULAM SARWAR NAQVI ................................................................................... 7
Conclusion .......................................................................................................................................................................... 10
Bibliography ....................................................................................................................................................................... 11
Abstract

In Muslim law, the testamentary document called the will is referred to as Wasiyat .Will or Wasiyat is a

document made by the legator in favor of legatee which becomes effective after the death of the legator.

Under Muslim law no person is entitled to make will of the whole property. Limitations are imposed in

making will. The reason being to pay the respect to the word of Prophet in order to ensure the shares of the

legal heirs. In case of will of absolute property nothing will remain for all sharers prescribed under Muslim

Law. Wills are declared lawful in the Quran.

1. Background of will in Islam.

Sa'd Ibn Abi Waqqas said: "In Mecca, in the year of the Farewell pilgrimage, the Messenger of

God used to visit me because of my disease which had become very severe. So I said, "My

illness has become very serious, and I have a lot of property, and there is none to inherit from me

but a daughter, shall I then bequeath two-thirds of my property as charity? ”He replied," No. I

said, "Half? "He said 'No.' Then he said: 'Bequeath one-third and one-third is much, for if you

leave your heirs free from want, it is better than that you leave them in need, begging others; and

you do not spend anything thereby seeking the pleasure of Allah, but you are rewarded for it

even for what you put into their wife's mouth.' 1

2. What is a will?
The testamentary document entitled the will it is referred to as Wasiyat in Muslim law. Wills are

considered valid in the Quran although the Quran itself does not provide for one third’s

testamentary limitation. Bequest permissibility up to one-third is attributed to a Propeht Hadis

claimed by Sa'd Ibn Abi Waqqas, and mentioned by Bukhari. A will is simply a legal document

signifying the tester's (the will-maker's) intention to distribute his or her property after death. The

testator has absolute ownership and control over the estate until he or she is alive.

A will does not affect the owner's right either to pass the property inter vivos or by any other

testamentary disposition. It is in no way binding upon the testator, especially before his or her

death. It is a revocable document on the same domain, either through formal termination or by a

subsequent will. A person's executed will also be revoked if he or she lacks healing and becomes

unstable after execution.

1
Sahih Al-Bukhari

1
As regards wills, the following terms are important to note:

a. Testator; The individual doing / creating a will.

b. Legatee; The person / persons the will is produced in whose favor.

c. Legacy; The object of will. This is the property which should be divided among the heirs.

c. Executor; The testator will appoint an individual to execute the will according to its contents

(after his death) while executing the will. In the absence of the testator appointing the executor,

the Court will appoint a person named 'administrator' to execute thy will.2

3. Circumstances in which one can create will

3.1 The rukn( essential element ) of wasiyyah

The single element of wasiyyah , according to all three jurists is the sigah or form, that is, offer

and acceptance. Zufar (God bless him) said that the element offer alone from the tester and not

acceptance.3

The offer by the testator for purposes of ritual matters, like the performance of hajj on behalf of

testator, is directed towards the executor who accepts it as part of his appointment. In other

matters the offer is directed at the legatee.

3.2 Requisites of a Valid Will

 The testator (legator) must he competent to make the Will.

 The legatee (testatrix) must be competent to take the legacy or bequest.

2
Dr A. K. Tripathi, The Concept of ‘will’ under Muslim Law, 4, International J. of Law & Legal Juris. Studs, 70, 72-
73
3
IMRAN AHSAN KHAN NAYAZEE, Outline of Muslim Personal Law176 (2016).

2
  The subject (property) of bequest must be a valid one (Qualitative requisite)

 The bequest must be within the limits imposed on the testamentary power of a Muslim

(Quantitative requisite)4

3.3 Testator and his Competence (Who can make Will?)

Every major Muslim (above 18 years) of sound mind can make a Will.

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).Thus, the testator must be of 18 or 21 years, as the case may he, at the time of

execution of the Will.

At the time of execution of a Will (i.e. when it is being made), the testator must be of sound

mind. A Will that is executed in apprehension of death is valid, but under the Shia law, if a

person executes any Will after attempting to commit suicide, the Will is void.

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.5

A Will procured by undue influence, coercion or fraud is not valid, and the court takes great care

in admitting the Will of a pardanashin lady. 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 in future. 6

4
Dr A. K. Tripathi, The Concept of ‘will’ under Muslim Law, 4, International J. of Law & Legal Juris. Studs, 70, 72-
73
5
Dr A. K. Tripathi, The Concept of ‘will’ under Muslim Law, 4, International J. of Law & Legal Juris. Studs, 70, 72-
73

3
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. 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.

3.4 Legatee and his Competence (To whom Will can be made?)

Any person capable of holding property may be the legatee under a Will. Thus, sex, age, creed or

religion is no bar to the taking of a bequest.

Legatee must be in existence at the time of making of the Will. Thus, a bequest to a person

unborn person is void. A bequest may be validly made for the benefit of ‘juristic person’ or an

institution.

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. No one can be made the beneficial owner of shares against his will.

Therefore, the title to the subject of bequest 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. A

person who has caused the death of the legator cannot be a competent legatee. A Will operates

only after the death of a legator, therefore, a greedy and impatient legatee may cause the legator's

death to get properties immediately.7

3.5 Testamentary Power and its Limits (Bequeath able one-Third)

A Muslim does not possess an unlimited power of making disposition by Will.

There are two-fold restrictions on the power of a Muslim to dispose of his property by Will,

which are in respect of the person in whose favor the bequest is made, and as to the extent to

which he can dispose of his property. The part of the estate that can be the subject matter of

7
Dr A. K. Tripathi, The Concept of ‘will’ under Muslim Law, 4, International J. of Law & Legal Juris. Studs, 70, 72-
73

4
bequest is limited to one third of the whole.If the heir allow it, an excess over one third also

become valid. The distinction between bequest and other forms of donation like hibah and

sadaqah is that in these forms it is the time of the contact that is taken in to account. If the donor

was in health, the entire donation is valid, but if he was ill at the time it is not permitted beyond a

one third. 8

4. Legal formalities to create a will

Here are the formalities involved in the formation of the will to be considered by the testator (a

individual who creates a will).

4.1 In writing

There are no limitations on the materials on which a will can be composed, or by which, or

which language can be used. It may be handwritten or typed, or a combination (for example,

printed forms with spaces filled in the handwriting of the testator).

It is highly recommended, as a matter of good practice, that a will be written in ink or typed

printed on durable paper.9

4.2 Signed

The testator must sign a will. This will usually be traditional. Nevertheless, if the testator was in

the habit of otherwise signing papers, such an execution might well be accurate. However, as

such a form of execution may be questioned, in such cases it would be prudent to consider

getting the will executed notarial. To be legally valid (i.e. assumed to have been signed by the

88
Dr A. K. Tripathi, The Concept of ‘will’ under Muslim Law, 4, International J. of Law & Legal Juris. Studs, 70, 72-73
9
Aisha Stacey, Islamic Inheritance and Wills, THE RELIGION OF ISLAM,
https://www.islamreligion.com/articles/5217/islamic-inheritance-and-wills

5
testator), a will should be signed using either the full name of the testator or the surname of the

testator followed by at least one forename, or an initial or a forename abbreviation or common

form.

4.3 The testator must have intended to give effect to his will by his signature

The testator must be informed that they are signing a will made by a husband and wife were

declared void because they had mistakenly signed the Will of each other, albeit in the same

words. 10

4.4 In the presence of a witness

witness are deemed to be 'real' if they can see the tester writing his signature and are real mentall

y and physically.witness should be at least 18 years old and should be able to provide reliable evi

dence in the future if required. Witnesses should not be anyone who is a beneficiary under the W

ill or who is married to or in a beneficiary under the Will. The testator's signature has to be made

or accepted by the testator in the presence of one witness who should sign or accept their

signature immediately after the testator signs.11

4.5 Each witness must attest and sign the Will, or acknowledge his signature, in the
presence of the testator.

The position of the signature is immaterial, but in the presence of the tester who is

psychologically and physically in a position to see the witnesses signing it must be put on the

10
Aisha Stacey, Islamic Inheritance and Wills, THE RELIGION OF ISLAM,
https://www.islamreligion.com/articles/5217/islamic-inheritance-and-wills
11
Dr A. K. Tripathi, The Concept of ‘will’ under Muslim Law, 4, International J. of Law & Legal Juris. Studs, 70,
81.

6
Will. The signature's location is immaterial because it must be placed on the Will in the presence

of the tester who is mentally and physically in a location to see the signing witnesses.

4.6 Testing clause

A testing clause is a clause in a will that specifies the conditions of signing and observing the

will. Such a clause is not mandatory but it is highly desirable.12

4.7 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.13

5. Case law

5.1 GHULAM ALI and 2 others V Mst. GHULAM SARWAR NAQVI

Facts

The three petitioners are the sons of Ghulam Ahmed Shah and the respondent admittedly

Is his daughter and their sister. Ghulam Ahmed Shah died in or about 1903. He left

Landed property in different estates. Mutations were entered and sanctioned properly in

Other estates except one where for the mutation of inheritance was sanctioned on

20th July, 1963. The property involved therein, it is stated, was not much as compared to

The remaining land which was duly mutated in favor of the Islamic heirs including the

12
Dr. A. Hussain, The Islamic Wills, ISLAM 101, https://www.islam101.com/sociology/wills.htm.
13
Dr A. K. Tripathi, The Concept of ‘will’ under Muslim Law, 4, International J. of Law & Legal Juris. Studs, 70,
80.

7
Respondent/daughter. Her share in the land under mutation is stated to be only 7. Her name was

omitted from the pedigree-table, made on this Mutation. Accordingly she not having been treated

as heir, was deprived of her Islamic Share in her father's property covered by this mutation. Be

that as it may, the suit filed by the Respondent seeking her share in the land covered under the

disputed mutation was dismissed by the trial Court, amongst others, on the ground of

relinquishment. This Finding of fact was set aside on appeal filed by her. The petitioners ‘Civil

Revision Challenging the appellate order-having been dismissed they have now sought leave to

Appeal.14

Judgment:

Relinquishment of her inheritance by a female co-sharer without

Consideration such relinquishment having been declared void being against public

Policy under S. 23 of the Contract Act cannot be revived and given life merely because it

Suffered from another serious infirmity and such infirmity could not be overcome by a

Resort to exceptions given in S.25 of the act presumption would be that relinquishment

Was not on account of natural love but on account of social constraints. The pure partitioning

between the males without any regard to the female heirs does not imply anything in the way of

ousting them from their property. where possession is not acquired by coercion, deception, or in

secrecy, it does not matter whether the individual to whom adverse possession is claimed is in

reality not identified. In the case of females in particular, it should be noted that: in the case of

pardanashin Muslim females, specific criteria apply from those which apply to adult males,

except in the case of adverse possession. The key issues, on the touchstone of Islamic inheritance

law, of the dispute of this term are settled. When a person dies, inheritance to his property opens.

14
Gulam Ali and 2 others v Gulam Sarwar Naqvi, 1990 PLD 1 SC (PAK.).

8
No State interference or involvement by the clergy is required to transfer the title to the heirs

instantly. Thus it is clear that the properties of a Muslim are lawfully and legitimately clothed

automatically after his death through his or her descendants and their privileges fall into separate

being instantly, respectively. The idea of an intermediary's ownership of the assets is unfamiliar

to Islamic inheritance law as opposed to other schemes. Therefore, there is no vesting in the

deceased's assets through an interim period of any such as an executor or trustee, it inevitably

devolves on the beneficiaries, and directly in clear shares and fractions. If they (the heirs) want

it, desire it, hate it or reject it, it is so regardless. It is the public policy of Islamic law. It is only

when the property has thus vested in the heir after the succession opens, that he or she can

alienate it in a lawful manner. There is enough comment and case-law on this point which stands

accepted. The respondent's relinquishment, if any, is against public policy and morals, the values

which are to be determined on the basis of Islamic teachings and standards. The respondent was

unable to opt out of this defense, or contract. Therefore the surrender act became invalid and

unsuccessful. Her ancestry, which accrued on her father's death in her favor, appeared unchanged

at all critical periods. So the said petition is dismissed.15

Critical Analysis of case

As earlier mention facts and judgment of case basically in this case there is critical analysis of

status of right of inheritance of women in Islamic legal system and other legal system this is the

case where right of women has been relinquish. Islamic gives right of inheritance to women as a

daughter, as a sister, as a mother, as a wife and in many other ways they got there share in

inheritance. Mohammad (P.B.U.H.) effected a complete change of the legal status of females,

from that of complete dependence and servitude to that of complete independence and enjoyment

15
Gulam Ali and 2 others v Gulam Sarwar Naqvi, 1990 PLD 1 SC (PAK.).

9
of full legal rights and privileges so much so that he placed them on a footing of perfect equality

with men in the exercise of all legal powers and functions. Which stand in bold relief when

compared with the state of law amongst ancient Arabs of the pre-Islamic days. In this case the

relinquishment has been found without consideration, yet this case is covered under section 25 of

the Contract Act, has yet to be disposed of. Section 25 declares all those agreements void which

are without consideration except for the exceptions created by the law itself as Supreme court up

held the decision of trial court and succeeded to give a strong judgment to protect right of

inheritance of women.

Conclusion
A Muslim will must be construed primarily in accordance with the rules laid down in the

Muhammadan Law, bearing in mind the social conditions that prevail, the language employed

and the surrounding circumstances. A will speaks as in modern law, from the death of the

testator. The Court should as far as possible give effect to the intention of the testator when there

is ambiguity in the will. The heirs may also be asked to interpret it. Islam has strongly

emphasized that each individual make a Will in his lifetime and have witnesses to it. “It is

prescribed for you, when death approaches one of you, if he leaves behind wealth, that he

bequeaths unto parents and near relatives in goodness, (that is) a duty on those who safeguard

themselves with full awareness of divine laws”.16 The Prophet (SAW) has also strongly urged

Muslims to do so. It is so much important, that when going to bed to sleep, it is recommended

that the Will be kept under the pillow.

16
The Holy Quran (2:180)

10
Bibliography
Gulam Ali and 2 others v Gulam Sarwar Naqvi, 1990 PLD 1 SC (PAK.).

Aisha Stacey, Islamic Inheritance and Wills, THE RELIGION OF ISLAM,

https://www.islamreligion.com/articles/5217/islamic-inheritance-and-wills

Dr A. K. Tripathi, The Concept of ‘will’ under Muslim Law, 4, International J. of Law & Legal Juris. Studs,
70, 72-73.

Dr A. K. Tripathi, The Concept of ‘will’ under Muslim Law, 4, International J. of Law & Legal Juris. Studs,
70, 80.

Dr. A. Hussain, The Islamic Wills, ISLAM 101, https://www.islam101.com/sociology/wills.htm

Sahih Al-Bukhari

The Holy Quran (2:180)

IMRAN AHSAN KHAN NAYAZEE, Outline of Muslim Personal Law176 (2016).

11