Gifts and Wills

By Zahid Ahmed

https://www.theindependentbd.com/magazine/details/93154/Gifts-and-Wills#:~:text=A
%20Hindu%20can%20bequeath%20or,the%20legatee%20must%20be%20alive.
Gratuitous transfer of ownership in a property may be made in two ways. Firstly, transfer may be
made inter vivos (between living persons) as a gift without any conditions. Secondly, transfer of
ownership may be made testamentary, in other words, through a will.
Testamentary transfer is executed under a will which is a gratuitous transfer of one’s ownership
in property, but it takes effect only after the death of the testator. On the other hand, a gift takes
effect immediately.
The basic difference between gift and will is that a Muslim can transfer their entire property
through gift, but a person has no right to make a will of the whole property, except one-third.
The legal consequence of a gift is that the transferee gets the property as soon as its legal
formalities are completed. But under a will, the person who is the transferee gets nothing before
the death of the transferor or testator. A will signifies the last desire of a person regarding the
distribution of his or her property after death.
Under Muslim Sharia law, a gift is a transfer of property in which ownership is transferred by one
living person to another living person, and the transfer is made without any sort of consideration.
Where ownership of a property is transferred in return of some consideration, the transfer is not
a gift; it is either a sale or exchange.
When a Muslim transfer a property through gift, or hiba, it signifies an act by which a person
confers his or her rights of ownership in a property upon another person. A person can make a
gift of his or her whole property to anyone during their lifetime, and under pure Sharia law, a gift
can be made orally. But under the prevailing law of the land, a gift now must be in writing and
registered for its absolute validity and enforceability.
There are three essential elements of making a valid gift _ declaration, acceptance and delivery of
possession _ and the donor must be an adult person of sound mind and a Muslim. Regarding
revocation of a gift, the law says once delivery of possession is completed, the gift cannot be
revoked. But before delivery of possession, a gift can be revoked at any time by the donor.
A will under Muslim law is called wasiyyat. There is some restriction in terms of the quantity of
property that can be willed. As per law, one cannot will validly more than one-third of his or her
whole property, and a will becomes effective only after the death of the testator. And necessary
probate or letter of administration must be taken in due process of law to make a will completely
and legally effective.
The person who executes a will is called a legator and the person in whose favour the will has
been made is the legatee. Commonly, a will is also called a testament. The person who makes a
will is the testator and the person who inherits is called testatrix. One of the essential
characteristics of a will is that the legatee must be in alive at the time of the death of the legator.
Where a legatee dies before the legator’s death, the will fails. Interestingly, if the testator executes
a will before attempting to commit suicide, the will is valid under Sharia law.
Under Hindu Shastriya law, gift and will is a little bit different. The nature of gift, its effectiveness
and other legal formalities are almost the same as that of Muslim law. The only difference is that
a gift under Hindu law once completed, it cannot be revoked.
The concept of will under Hindu law is different in terms of quantity of property. A Hindu can
bequeath or will the whole of his or her property to any one, there is no restriction. But the will
takes effect after the death of the legator, and at that time, the legatee must be alive. Probate is
must for legalisation of a Hindu will through filing of a probate case in a civil court and getting a
decree.
In India, they have separate legislations to deal with wills, gifts and succession. Legislations such
as Hindu Wills Act, 1870, Probate and Administration Act, 1881, and The Succession Act, 1925,
thoroughly provide procedure and laws regarding the execution and validity of a will and gift
made by a Hindu. But in Bangladesh, there is no distinct act or legislation to deal with such
matters for the Hindu community.

The writer is an Advocate, Supreme Court of Bangladesh.