FAMILY LAW -2

UNIT-5 WILL

MUSLIM LAWS

INTRODUCTION
There are enormous ways to make disposition of property in Hindu law as well
as in Islamic Law.
Under Islamic law, a Muslim can dispose of his property by gift, by creating a
wakf or by accessing his testamentary powers i.e. by making a Will.
The concept of a Will under Islamic law is a sort of bargain between two
different propensities.
One, the view of the prophet is clear that after the death of a person, his
property has to be distributed to his heirs and this rule is considered as divine
law and any interference to it is unacceptable.
On the other hand, it is a moral duty of every Muslim to make appropriate
arrangements for his property after his death.

MEANING AND NATURE OF WILL

Conventionally, a Will, also called ‘testament’ is an implement which enables a
person to dispose of his own property to someone whom he wants to give after
his death.
A Will comes into effect only after the death of the person who created the Will.
A Will is a legal declaration of transfer of property by a person after his death.
In Islamic law, a Will executed by a Muslim is known as ‘Wasiyat’.
The person who executes the Will is called ‘legator’ or ‘testator’ and the person
in whose favour the Will is made is known as ‘legatee’ or ‘testatrix’.
There is a strict rule in Islamic law that governs the validity of a Will.
According to this rule, a Muslim can make a Will in favour of anyone, only to
the extent of one-third of his total property.
If the Will is made beyond one-third of the property, the consent of the legal
heirs is mandatory no matter in whose favour the Will is made.
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.
 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).

WHO CAN MAKE A WILL?

In order to constitute a valid Will, the competency of the legator is the foremost
requirement. A legator is considered to be capable to make a Will if he holds the
following discussed features.
He must be a Muslim: A Will made by a Muslim only is considered as an
authentic Will under Islamic law.
Soundness of mind: When the Will is being made, the legator must be sane.
Under Muslim law, it has been quoted that a legator must possess a perfect
‘disposing mind’ at the time of execution of a Will.
Age of majority: The legator must attain the age of majority at the time of
execution of the Will. Any Will executed by a minor is considered to be void.
The validity of such Will is suspended till the legator attains majority.
Attempt to suicide by Legator: If a Will is executed by a person who has
attempted to commit suicide, such a Will is contemplated as void under the Shia
law. The logic behind this rule is that if a person has attempted suicide, he
cannot be held in his normal state of mind rather, he is assumed to be mentally
unstable and disturbed.
Consent of Legator: While executing a Will, the free consent of the legator is
mandatory. Any Will, if found to be executed by a legator under coercion, undue
influence or fraud Will be treated as null and void and the legatee Will not be
entitled to get any property under that Will.

WHO CAN TAKE PROPERTY UNDER A WILL?

Besides competency of legator, there is one more essential requirement of a
valid Will and that is the competency of the legatee. The following are the
characteristics of a legatee who is capable of taking a Will executed by a
legator.
He must be a person in existence: A legatee is competent to take a Will on
condition that he must be living at the time of death of the legator.

Child in mother’s womb: A child in a mother’s womb is treated as a living

person and thus, is a competent legatee under Islamic law under two conditions.
Murderer of Legator: A Will comes into effect only after the death of legator.
Consent of Legatee: Before transferring legal title to the legatee under a Will, it
is important to take the consent of the legatee to know whether he wants to
accept the Will or not.
Joint Legatee: Sometimes, legator issues Will jointly in favour of several
legatees. In such circumstances, the legatees are known as joint legatees.

FORMALITIES OF A WILL
Muslim law does not expressly propound any specific formalities for the
execution of the Will. A Will can be made either orally or in writing or even by
gestures.
Oral Will: A simple oral declaration is also considered as a valid Will. It is not
abiding to follow any particular process or formality in order to constitute a
Will.
Written Will: For a Will to be declared in writing, no specific form is described.
A Will is valid even if it is not signed by the legator or attested by the witnesses.
Will made by Gestures: Under Islamic law, a Will may be made by gestures. For
example, if a sick person makes an endowment and cannot speak due to
weakness, gives a nod with his head in a comprehensive way and if it is
understood what he is trying to convey and subsequently, he dies without
regaining his ability to speak, the bequest is valid and lawful.

THE SUBJECT MATTER OF A WILL

Any type of property, corporeal or incorporeal, moveable or immovable, can
constitute the subject matter of the Will. But a legator can bequest a property in
a Will only under two conditions-
 If he owns the property at the time of his death.
 The property must be transferable.
REVOCATION OF A WILL
Muslim law grants an emancipated right to legator exercising which he can
revoke the Will or any part of the Will executed by him anytime. Similarly, he
can add something reasonable to the Will as well.
A legator may revoke the Will either expressly or impliedly.

EXPRESS REVOCATION
An express revocation may be done in oral or in writing. For example, if a
legator bequests some of his property to a person and by making a subsequent
Will he bequeaths the same property to another person, then the first Will is
considered to be revoked automatically.

IMPLIED REVOCATION
Any act done by legator contrary to the bequest Will revoke the Will. In other
words, an act which leads to the annihilation of the subject-matter of the bequest
is considered as an implied revocation of the Will.

MARZ-UL MAUT
One of the Muslim laws enshrined in the Shariat is the Marz-ul Maut or gifts
made by a Muslim on his death bed.
Muslim law in India means that portion of Islamic civil law which is applicable
only to Muslims.
Generally the trend among Muslims earlier was not to make a will or ‘Wasiyat’.
Hence Islamic law thought it prudent to lay down a set of laws regarding
disposal of property when a Muslim was on his death bed.
This is referred to as Marz-ul- Maut. Gift during Marz-ul-Maut is one form of
testamentary succession.
Gift during Marz-ul-Maut means gift on the death bed.
When a person is very seriously ill and on the apprehension of death and he
makes a gift at that time, then it will be a gift during Marz-ul-Maut.
Gift on the death bed is a hybrid of 'hiba' or gift and will. It includes some
essential elements of will and some essential elements of gift.
As per Islamic personal law a gift made at a time when there is reasonable
apprehension of death of the testator will be distributed as per the canons of the
Shariat.
This is called death bed gifts and is valid only if the testator dies after executing
a will. As per the Shariat there are 2 restriction imposed on this gift on the death
bed which are as follows:
a) There can be no disqualification of an heir or successor
b) The net value of the property that can be disposed should not be greater than
1/3rd of the total value of the assets.

The Shariat law is inviolable, except with the consent of the heirs. Thus on his
own no Muslim can disown any heir while making a will during Marz-ul-Maut.
Some reasonable restrictions are imposed by the Shariat on Marz-ul- Maut.
These are
a) There should be genuine apprehension of death due to an illness. In case a
person does not die, the will made will be null and void.
b) Mere apprehension of death due to old age is not a ground for Marz-ul Maut.
Thus a man dying from natural causes due to old age does not come under the
purview of this law.

PRIVILEGED AND UNPRIVILEGED WILL

INTRODUCTION
The Wills of the people of India except the people belonging to the Muslim
Community, are governed by one of the oldest laws called “The Indian
Succession Act, 1925”.
A Will is defined under Section 2(h) of the Indian Succession Act, 1925, as the
legal declaration of the intention of a testator with respect to his property, which
he desires to be carried into effect after his death.
The validity of the Will does not depend on stamp duty or notarization as both
measures are not required.
The testator can register the Will on his/her own wish, but if he/she does not
register the Will even then it does not make any difference in its validity.
Although, if the testator has made two Wills, one registered and the other one
non-registered then the former shall prevail as the valid one.
UNPRIVILEGED WILL
A Will can be executed by any person of sound mind but it should comply with
the conditions of Section 63 of the Indian Succession Act, 1925, in order to
execute a valid Will:

 The Will should be signed or affixed with a mark of the testator or the
Will must be signed by some other person in the testator’s presence and
under his directions.
 Such a signature or mark must be so placed that it appears that it was
intended to give effect to the writing as a Will.
 The Will must be attested by at least two witnesses as under:
1. Each witness must have seen the testator sign (or affix his mark) or seen
some other person sign the Will in the testator’s presence and under his
directions; or
2. Each witness must have received from the testator a personal
acknowledgement of his signature (or mark) or of the signature of such
other person; or
3. Each witness must sign the Will in the presence of the testator although
they need not sign in the presence of each other.
Usually, Wills are signed by the testator himself. However, a testator may,
instead of signing the Will, put his mark i.e., thumb impression thereon, either
because he is illiterate, or because he is incapable of signing due to certain
illness or even though sheer habit.
A mere signing on a Will by another person does not always amount to
attestation. Attesting means signing a document for the purpose of testifying to
the signature of the person executing the document. The attesting witness is not
required to know the contents of the Will.

PRIVILEGED WILL
For Privileged Wills there is an exception pertaining to strict attestation for the
soldiers or airmen employed in an expedition or engaged in actual warfare.
These people are entitled to make a written or oral Will (verbal dictation to a
trusted individual) and if such person wants to make the Will in a written form,
then he/she can make it without the need of signature or attestation,
only if the Will is made in accordance with Section 66 of the Indian Succession
Act,1925 which provides six rules regarding execution of the Privileged Wills:
 The testator (i.e., the person making the Will) may write such a Will
wholly in his own handwriting. In such a case, it is not necessary to be
signed by him or attested by witnesses.
 The Will may be written, wholly or in part, by another person and signed
by the testator. In such cases, attestation by witnesses is not necessary.
 Even if the Will is written, wholly or in part, by another person, but is not
signed by the testator, it is valid, provided it was written under the
testator’s directions or if he recognized it as his Will.
 If the soldier, airman or mariner had given written instructions to prepare
his Will but died before it could be so prepared, such written instructions
are to be considered as a valid Will made by him.
 Even verbal instructions for preparing a Will would amount to a valid
Will made by such a person, provided that:
1. The verbal instructions were given in the presence of two witnesses;
2. Such instructions have been converted into writing in his lifetime; and
3. He has died before the formal will could be prepared and executed.
 Lastly, such a Will can be made by the soldier, airman or mariner by word
of mouth i.e., an oral declaration of his intentions before two witnesses
present at the same time.
 However, such an oral will automatically become null and void at the
expiry of one month after such a person, being still alive, has ceased to be
entitled to make a privileged Will.