MEANING

A Will under Mohammedan Law is called as Wasiyat, which means a moral

exhortation or a declaration in compliance with moral duty of every Muslim to make
arrangements for the distribution of his estate or property. The Mohammedan Law
restricts a Muslim person to bequeath his whole property in a will and allows him to
bequeath 1/3rd of his estate by writing will, which will take effect after his death. The
law is mainly uncodified is governed by the holy book and customs.
The Will (Al-wasiyya)
The Islamic will includes bequests and legacies, instructions and admonishments, and
assignments of rights. No specific wording is necessary for making a will. In Islamic
law the will (wasiyya) can be oral or written, and the intention of the testator must be
clear that thewasiyya is to be executed after his death. any expression which signifies
the intention of the testator is sufficient for the purpose of constituting a bequest.
There should be two witnesses to the declaration of the wasiyya. A written wasiyya
where there are no witnesses to an oral declaration is valid if it written in the known
handwriting/signature of the testator according to Maliki and Hanbali fiqh. The
wasiyya is executed after payment of debts and funeral expenses. The majority view is
that debts to Allah (SWT) such as zakh, obligatory expiation etc. should be paid
whether mentioned in the will or not. However, there is difference of opinion on this
matter amongst the Muslim jurists
Will is the legal declaration of a persons intention which he wishes to be
performed after his death and once the Will is made by the testator it can only be
revoked during his lifetime. A Will does not involve any transfer, nor affect any
transfer inter-vivos, but it is an expression of intending to appoint a person who will
look after the properties after his (Testator) death. A Will regulates the succession and
provides for succession as declared by the testator. Indian Law which is governed
under Section 5 of The Indian Succession Act, 1925 which provides different rules
for intestate succession and testamentary succession in India. It applies to all the
communities in India except Muslim. In India there is a well-developed system of
succession laws that governs a persons property after his death. The Indian
Succession Act 1925 applies expressly to Wills and codicils made by Hindus,
Buddhists, Sikhs, Jains, Parsis and Christians but not to Mohammedans as they are
largely covered by Muslim Personal Law.
CONCEPT
The records that have been handed down to us from antiquity regarding the
customs and usages of the pre-Islamite Arabs seem to establish abundantly that
testamentary dispositions were not unknown among the pagan tribes of the peninsula.
But it is difficult to say, from the materials in our possession, what were the conditions
which regulated the validity or invalidity of wills made by them.
The Rabbinical Law which was in force among the Jewish tribes prohibited the
testator from depriving his lawful heirs from succession; it also precluded him from

constituting a stranger as an heir. But when a disposition was effectuated by the

immediate delivery of possession, the Rabbinical Law apparently regarded it as valid.
A will could be made either verbally or in writing, but, generally speaking, the first
mode was considered as the more preferable of the two.
The Koran expressly sanctioned the power of making a testamentary
disposition, and regulated the formalities and conditions to which it is subjected . The
leading authority on the subject of wills is the Hedaya, which was translated from the
original Arabic by four Maulvis or Mahomedan lawyers: and from Persian into
English by Charles Hamilton by order of Waren Hastings when he was GovernorGeneral of India. The Hedaya was composed by Shaikh Burhan-ud-Din Ali who
flourished in the twelfth century. The author of the Hedaya belonged to the Hanafi
School, and it is the doctrines of that school that he has principally recorded in that
work.
Wills, says the Hedaya, are lawful on a favourable construction. Analogy
would suggest that they are unlawful, because a bequest signifies an endowment with
a thing in a way which occasions such endowment to be referred to a time when the
property has become void in the proprietor (i.e., the testator), and as an endowment
with reference to a future period (as if a person were to say to another, I constitute
you proprietor of this article on the morrow,) is unlawful, supposing even that the
donors property in the article still continues to exist at that time, it follows that the
suspension of the deed to a period when the property is null and void (as at the
decease of the party), is a fortiori unlawful.
The reasons, however, for a more favourable construction in this particular are
twofold:- First, there is an indispensable necessity that men should have the power of
making bequests, for a man, from the delusion of his hopes, is improvident and
deficient in practice, but when sickness invades him, he becomes alarmed and afraid
of death. at that period, therefore, he stands in need of compensating for his
deficiencies by means of his property- and this in such a manner that if he should die
of that illness, his objects (namely, compensation or his deficiency and merit in a
future state) may be obtained-or, on the other hand, if he should recover, that he may
apply the said property to his wants- and as these objects are attainable by giving a
legal validity to wills, there are, therefore, ordained to be lawful. Secondly, wills are
decided to be lawful in the Koran and the traditions, and all doctors, moreover, have
concurred in this opinion.
The nucleus of the law of Wills is, by common consent, to be found in a
tradition of the Prophet, reported by Bukhari : Sad ibn Abi Waqqas said: The
Messenger of God used to visit me at Mecca, in the year of the Farewell pilgrimage,
on account of illness which has become very sever. So I said, My illness has become
very severe and I have much property and there is none to inherit from me but a
daughter, shall I then bequeath two-thirds of my property as a charity? he said, No.
I said, Half? he said, No. then he said: Bequeath one-third and one-third is much,

for if thou leavest thy heirs free from want, it is better than thou leavest them in want,
begging of (others) people; and thou dost not spend anything seeking thereby the
pleasure of Allah but thou art rewarded for it, even for that which thou puttest into the
mouth of thy wife. The rule of one-third was recognised by our courts as early as
1806, and later on in Ekin Bibee , Jumunoodeen Ahmad , Baboojan , and Sukoomat
Bibee .
DEFINITION
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 death . 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 . 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 testator .
Tayyabji 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 make arrangements 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.
FORM AND CHARACTERISTICS
By the Mahomedan law no writing is required to make a will valid, and no
particular form, even of verbal declaration is necessary as long as the intention of the
testator is sufficiently ascertained . In a case before the Privy Council a letter written
by a testator shortly before his death and containing directions as to the disposition of
his property, was held to constitute a valid will . The mere fact that a document is
called tamlik-nama will not prevent it from operating as a will, if it possesses the
substantial characteristics of a will . But where a Mahomedan executed a document
which started, I have no son, and I have adopted my nephew to succeed to my
property as title. It was held by the Privy Council that the document did not operate
as a will. Nor did it operate as a gift, for there was no delivery of possession to the
nephew by the deceased .

In the case of Aulia Bibi v. Ala-ud-din , it was found that a document

purporting to be the will of a Mahommedan lady was in fact drawn up in accordance
with instructions given by the testatrix to a vakil at a time when the testatrix was
competent to make a will; the High Court of Allahabad held that such a document
was a valid will notwithstanding the absence of the signature of the testatrix.
A will may be made also by signs, as in the case of a dumb person who does
not possess the faculty of speech, but who can express his meaning by signs. So also
in the case of a person who is a mariz, that is, suffering from a mortal illness and
unable from weakness to speak. A sick man makes a bequest, and being unable to
speak from weakness, gives a nod with his head, and it is known that he comprehends
what he is about; in these circumstances, if his meaning be understood, the bequest is
lawful but not otherwise. And it is implied that he dies without regaining the power of
speech; for then it is evident that there was no hope at the time of the bequest of his
being able to speak, and his condition was therefore the same as that of a dumb man.
The burden of establishing an oral will is always a very heavy one; it must be
proved with utmost precision, and with every circumstance of time and place . The
court must be made certain that it knows what the speaker said and must from the
circumstances and from the statement be able to infer for itself that testamentary effect
was intended, in addition to being satisfied of the contents of the direction given . The
person who propounds a will is under a greater obligation to prove by clear evidence
that the will was executed by the testator and at the time of the execution he was a free
agent and possessed of a sound and disposing state of mind.
A wasiat may be conditional or contingent. In such a case its operation will be
dependent upon the happening of the contingency and if the contingency does not
happen, it will not be given effect to . A reference to some impending danger is
common to most of the cases. For example, a man may say, should I die of such a
malady, or should I not return from the pilgrimage to the Holy Shrine I leave.. or I
bequeath so and so in case anything happens to me on my voyage to Mecca, the
wasiats in these cases would not take effect if the contingencies apprehended do not
happen, whether the will be in writing or by word of mouth.
CONSTRUCTION OF WILL:
The general rule governing the construction of wills is that a Muslim will is to
be construed in accordance with the rules of construction of the will laid down in
Muslim Law, the language used by the testator and the surrounding circumstances. It
is also a general rule of construction of wills that unless a different intention appears,
a will speaks from the death of the testator, and the bequests contained in it take effect
accordingly. It is a universal rule of construction of wills that the court tries to give
effect, as far as possible, to the intention of the testator. Where the testator used such
ambiguous language that its construction is not possible by giving usual meaning to
the words used, then it is left to the heirs to give it whatever interpretation they

want. Thus, where a testator lays down in his will that something, or some trifle,
should be given to P or I leave a garment or a book to Q, then heirs may give to P
and Q whatever they like, or any garment, such as a new court or an old one or any
book, a copy of the Koran or a book of songs. Where a testator bequeaths an article by
description without appropriating any specific article, and if the testator does not own
any such article at the time of his death, the bequest fails, unless the intention to
bequeath the value of the article is indicated. In such a case the article as described by
the testator will be purchased out of the assets and handed over to the legatee
REQUISITIES
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
A. TESTATOR ((Al-musi)AND HIS COMPETENCE
Every Muslim who is of sound mind and of the age of majority has the capacity
to make a will. Except in case of marriage, dower and divorce, the age of Majority of
Muslims is regulated by the Indian Majority Act, under which the age of majority is
the completion of eighteenth year in ordinary cases, and completion of twenty-first
year in cases where the guardian of a minor is appointed under the Guardians and
Wards Act. Muslim law-givers lay down that a will of a minor can be ratified by him
on attaining majority, but the will of a person of unsound mind cannot be ratified on
his regaining sanity. Not merely this, the Muslim authorities hold that will made by a
sane person will become invalid, if subsequently he become a lunatic.
Every adult Muslim with reasoning ability has capacity to make a will. A
Hanafi, Hanbali or Shafii Muslim is adult for this purpose as soon as he has attained
puberty; the presumption of puberty in Sunni law being 15 years at a maximum. The
Shia law and the Maliki doctrine place the emphasis on the age of discernment,
namely 10 years.
Regardless of the traditional view of the Muslim jurists about the age of
disposition, the matter is now regulated by statutes in most of the Muslim countries. In
Pakistan, India and Bangladesh, the age of majority as discussed above has been fixed
at eighteen years . The Egyptian and Syrian laws provide that the testator must possess
the legal capacity to make a disposition for no consideration. The Iraqi law adds and
be the owner of what he bequests. The Algerian law is clearer requiring the testator
to be of sound mind, not under 19 years of age, that is, the Algerian age of majority.
However, the Syrian law makes the will by a person put under interdiction on grounds
of prodigality or native valid, subject to the court order. Egyptian and Kuwaiti add to
the Syrian law that the person making the will has reached 18 calendar years of age,
which is 3 years under Egyptian and Kuwaiti age of majority. The law in Egypt and

Kuwait is based on the Shafii view which is more restrictive than that of the Hanafi,
Maliki and Hanbali who allow a will by a prodigal. The Tunisian law allows will by a
prodigal provided that such a will be passed by a Court. A bequest by a minor may be
validated by subsequent ratification . The Shia law requires that the testator must be
free, adult, of sound mind and acting on his own free will. However, the Shias allow
a will by a boy of 10 and a prodigal under interdiction if it is for charity.
In traditional Sunni Islamic law the power of the testator is limited in two ways:
Firstly, he cannot bequest more than 1/3 of his net estate unless the other
heirs consent to the bequest or there are no legal heirs at all or the only
legal heir is the spouse who gets his/her legal share and the residue can be
bequeathed.
Narrated Sad ibn Abi Waqqas (RA): "I was stricken by an ailment that led me to the
verge of death. The Prophet came to pay me a visit. I said, "O Allah's Apostle! I have
much property and no heir except my single daughter. Shall I give two-thirds of my
property in charity?" He said, "No." I said, "Half of it?" He said, "No." I said, "Onethird of it?" He said, "You may do so, though one-third is also too much, for it is
better for you to leave your offspring wealthy than to leave them poor, asking
others for help..." (Sahih al-Bukhari, Sahah Muslim, Muwatta, Tirmidhi, Abu Dawud
and Ibn Majah.)
Secondly, the testator cannot make a bequest in favour of a legal heir under
traditional Sunni Muslim law. However, some Islamic countries do allow a bequest in
favour of a legal heir providing the bequest does not exceed the bequeathable onethird. Legal heir in this context is one who is a legal heir at the time of death of the
testator.
Narrated Abu Hurayrah (RA): Allahs Prophet (SAWS) said, "Allah has appointed for
everyone who has a right what is due to him, and no bequest must be made to an heir.
(Abu Dawud). Similar hadith narrated by Abu Umamah (RA) and reported by Ibn
Majah, Ahmad and others
A will made by a person of unsound mind is void and it does not become valid
by his becoming of sound mind subsequently. A will made by a person while of a
sound mind becomes invalid if the testator subsequently becomes permanently of
unsound mind but when insanity has not lasted for more than six months, bequest is
not avoided . The Egyptian and Syrian laws provide that a will should be void if the
testator became incessantly insane until death. The Iraqi law provides that the wills
should become void on the testator losing his legal capacity until his death.
Bequests by parda nashin ladies (women in seclusion) are allowed but
subject to strict proof. Cases of procurement, such as undue influence or even
coercion, often arise in cases where hires allege that the deceased was a pardanashin
lady. The rule in this situation is that the burden lies on the beneficiary to prove that
the parda nashin knew what she was doing, that the transaction was explained to

her, and that she had good independent advice in making the bequest at arms length
from the beneficiary.
According to the Hanafi school, apostasy does not invalidate a will if it is
otherwise lawful. A will by a female apostate is lawful according to the sect to which
she apostatises. However, all these customary rules are otiose. After the coming into
force of the Caste Disabilities Removal Act, 1850, under which apostasy is no more a
disqualification.
Debts have priority over legacy. If the testator is in debt to the full amount of
his property, the bequest would not be lawful unless the creditors relinquish their
claims. A person condemned to death may also make a will. A will by a person under
coercion, undue influence or fraud is disallowed. A will made by a person after he has
taken poison or has done any other act towards the commission of suicide, is not
valid. The Shia law however says that if the person made the will and then committed
suicide, the bequest would be valid.
B. LEGATEE((Al-musa lahu) AND HIS COMPETENCE
Generally speaking, for a bequest to be valid, a legatee must be in existence at
the time of death of the testator except in the case of a general and continuing
legatee such as the poor, orphans etc. The legatee must be capable of owning the
bequest. any bequest made in favour of any legal heir already entitled to a share is
invalid under traditional Sunni Muslim law unless consented to by other legal heirs.
an acknowledgement of debt in favour of a legal heir is valid.
Acceptance or rejection of a bequest by the legatee is only relevant after the
death of the testator and not before. Generally speaking once a legatee has accepted or
rejected a bequest he cannot change his mind subsequently. If the legatee dies without
accepting or rejecting the bequest, the bequest becomes part of the legatees estate
according to the Hanafi fiqh because nonrejection is regarded as acceptance.
According to the other three main Sunni madhahib, the right to accept or reject the
bequest passes onto the heirs of the legatee.
There is difference of opinion as to the time at which ownership of a bequest is
transferred from the testator (or his heirs) to the legatee. According to the Hanafi and
Shafii fiqh the transfer of ownership is at the time of death of the testator, according to
the Maliki and Hanbali fiqh the transfer of ownership is at
the time of accepting the bequest.
All the Sunni madhahib agree that if the legatee dies before the testator, the
bequest is invalid since a bequest can only be accepted after the death of the testator.
If there is uncertainty as to whether or not the legatee survived the testator, such as a
missing legatee, the bequest is invalid because the legatee must be alive at the time of
death of the testator for the will to be valid.
If the testator and legatee die together, such as in an air crash and it is not
certain who died first, the bequest is invalid according to the Hanafi, Maliki and
Shafiifiqh. But according to the Hanbali fiqh, the bequest devolves upon the

legatees heirs who may accept or reject it.

Any person capable of holding property may be a legatee under a will. Thus,
sex, age, creed or religion is no bar to the taking of bequest. No one can be made the
beneficial owner of share against his will. Therefore, the title to the subject of bequest
can only be completed with the express or implied assent of the legatee after the death
of the testator.
In principle, a wasiyat is lawful for any person or object actually or
constructively in existence at the time of the disposition. It is an indispensable
condition, says the Shariya, that the legatee be in existence at the time of bequest,
and if he should not be alive, the legacy is not valid, in the same way as a legacy to a
deceased person, or to one supposed to be alive, but who is afterwards proved to have
been dead at the time of bequest. So also it is stated in the Alamgiri, that there is no
bequest for the non-existing or the dead.
A bequest in favour of a non-Muslim is valid. In Hedaya, the following verses
of the Quran has been quoted: Ye are not prohibited, o believers, from acts of
benevolence towards those who subject themselves to you, and refrain from battles
and contentions. It is therefore clear that a Muslim can give his property by
bequesting the same in favour of a non-Muslim provided the non-Muslim is not
hostile towards Islam. A bequest to non-Muslims is valid according to all schools
except Shafii School.
An apostate may be a legatee. But in India, this rule of Shafii law does not apply
owing to Act Xxi of 1850. In the Shafii view, a bequest in favour of an apostate is,
according to better opinion, valid. Manslayer is one who kills another person, from
whom he intends to take legacy. Hanafi law prohibits him to take any interest in the
bequest. In Ithna Ashari (Shia) law, however, the more logical view is taken and only
intentional homicide leads to exclusion. Institution, whether religious or charitable,
can be valid legatees.
When bequest is made in favour of two or more persons in the same will it is
called a joint legacy. If the legacy fails in respect of any one or more of these, who
would be entitled to the legacy? In such cases, if a particular legatee, was incompetent
ab initio, the entire property subject matter of the will, goes to the remaining legatee
or legatees. Thus- A makes a bequest of 1/3rd jointly in favour of B and C (i.e., 1/6th
each). B was dead at the time of the bequest, whether A knew or not. C would get the
entire 1/3rd.
A class of persons (all the poor of this town) may be made a legatee. It would
jointly rank as a single legatee. According to Abu Hanifa and Abu Yusuf, the amount
may be spent on one poor person and according to Muhammadan on at least two
persons. A class may be special class as well.
The express or implied assent of the legatee after the death of the testator is
necessary to complete the legatees title to the bequest. The legatee has a right to
disclaim. Under Shia law, a legatee may validly accept part of the bequest, and

disclaim and remainder. Acceptance or rejection during the lifetime of the testator has
no effect; even if the legatee had rejected the bequest during the lifetime of its author,
he can accept it after his death, and that would be valid. If however, the legatee
survives the testator and dies without assenting to the will, the assent is presumed.
Under Shafi law the right of acceptance passes to his heirs. The law favours the
positive side, hence the implied assent. And if the legatee has derived any benefits
from the will, the assent is presumed. Similarly the assent of a child or a child in
embryo is presumed. Also when a class (poor) is the legatee, the acceptance is
presumed and the will becomes irrevocable by the death of the testator.
EXECUTOR OF THE WILL (AL-WASI AL- MUKHTAR)
The executor (al-wasi) of the will is the manager of the estate appointed by the
testator. The executor has to carry out the wishes of the testator according to
Islamic law, to watch the interests of the children and of the estate. The authority of
the executor should be specified. Hanafi and Maliki fiqh state that the executor should
be trustworthy and truthful; the Shafii fiqh state that the executor must be just. The
Hanafi fiqh considers the appointment of a non- Muslim executor to be valid. The
testator may appoint more than one executor, male or female. The testator should state
if each executor can act independently of the other executor(s). If one starts acting as
an executor, one will be regarded as having accepted the appointment, both in Islamic
and in English law
.C. SUBJECT OF WILL
Any type of property, immovable or movable, corporeal or incorporeal, which is
capable of being transferred, may form the subject-matter of a bequest. It is not
necessary that the subject-matter of the will should be in existence when the will is
made, it is sufficient, if it is in existence at the time of testators death. The bequest
may consist of the corpus or of the usufruct. Under Muslim law, it is possible that a
testator may give corpus to one person and the usufruct to another. Thus, a right to
occupy a house during a future period of time, or to take the rents, or future produce,
or usufruct for a limited time, for he life time of the legatee may validly constitute the
subject-matter of a will .
The corpus of property and its usufruct may be treated as separate properties for
purposes of bequests. The question will of course be one of interpretation of the terms
of a will for ascertaining as to what was the subject of the bequest. It is permissible to
make a bequest of the thing itself in favour of one person and of its produce or use to
another. In these cases the legatee of the usufruct will be exclusively entitled to the
use during his term.
The bequest of property which does not belong to the testator would not be
valid unless the person to whom the property belongs given his consent after the death
of the testator. The consent being however purely voluntary and gratuitous, the owner
of the property may refuse to give the property to the legatee. The legatee is entitled to

take property in the form in which it exists at the time of the death of the testator. He
is, therefore, entitled to all accessions to the subject of the bequest before partition or
distribution of the estate. This is so even if the accession is made after the death of the
testator. The bequest would continue to be valid unless the change or the improvement
is so substantial as to imply revocation of the bequests. The accession is also subject
to the testamentary limits of one-third.
The subject matter of the bequest need not be in existence at the time of the
testators death. The reason is that a will takes effect from the moment of the testators
death, and not earlier. This is the view that prevails in Pakistan and India. However,
the view in the Arab countires, except for Algeria, is to the contrary. A will is void
there if its subject matter is not existing at the time whether will is made. The reason
advanced is that no person has the right to dispose the property he does not own.
Therefore, a will remains void even if the testator becomes the owner of the subject of
bequest, unless a new will is then made .
No testator can create by will an estate repugnant to law. Things that are outside
the ambit of trade and cannot be object of property and the sale of which is void, e.g.,
animals blood and pigs, cannot be valid subjects of a Muslims will. The same applies
to things in which there is no ownership, such as air and water, rivers and public
roads. Where the bequest is of right to take profits of a house, the beneficiary, except
under Shafii law, has no right to live in it. The apparent reason is that the hiers of the
deceased are entitled to manage property whose only obligation in such a case is to
pay the rents to the legatee. Of course, heirs may permit him to occupy it. Under
Shafii law, the legatee becomes as it were the proprietor of the house.
The Egyptian law provides that: The bequest is stipulated to be (1) an object
that can be inherited or may be an object for a contract during the life of the testator;
(2) a valuable asset in the possession of the testator if it is a property; (3) owned by
the testator, if it was definite per se, at the time of the will. Kuwait adopted Egyptian
law with the modification that a will could take effect in the future and can be made
subject to a valid condition. The Syrian law also adopted the Egyptian law
emphasising that the ownership of the bequest must be transferable on the death of the
testator and should constitute a valuable asset according to his religious law. The Iraqi
law only requires transferability of the ownership of the bequest after the death of the
testator. The Algerian law allows the testator to make a bequest of the property which
he owns or is going to own before his death, be it a substance or a usufruct. Moroccan
law simply rules that the bequest must be capable of being taken possession of.
Sunni Law treats a bequest to life-estate as bequest with a condition attached
to it and as such the rule of a conditional gift applies i.e., the bequest takes effect
while the condition becomes void, for instance, a bequest to A for life and after his
death to B is in its legal effect a bequest to A absolutely and B takes nothing under it.
Thus a bequest of life-estate is not recognised under Mohammedan Law.
D. TESTAMENTARY POWER AND ITS LIMITS

The pre-Islamic Arabs had unlimited power of disposing of their property by

will also by acts Inter vivos. There was also no restriction as to the extent of legacies.
Mahommedan law has not given unlimited testamentary powers. Two-fold restrictions
are placed on the power to make will:
1.
There is a restriction as to the persons to whom a bequest may be made.
2.
There is a restriction as to the property of which a bequest may be made.
The law of bequests derives its origin from the following Quranic verses:
It is prescribed for you, when death approacheth one of you, if he leave wealth, that
he bequeath unto parents and near parents and near relatives in kindness. (This is) a
duty for all those who ward off (evil). [The Quran Surah Al Baqarah 2:180]
(In the case of) those of you who are about to die and leave behind them wives,
they should bequeath unto their wives a provision for the year [The Quran Surah
Al Baqarah 2:240] These Quranic verses, the first of which is generally known as the
verse of bequests represent historically the first Islamic regulation on the subject of
succession. They enjoin testamentary disposition only, or primarily, as a means by
which the deceased might make suitable provision for his surviving relatives, and for
this reason the verse were generally held to be superseded by the Quranic verses
which laid down the rules of inheritance.
A bequest ro a heir is not valid unless the other heirs consent to the bequest after
the death of the testator. There has been a great controversy over this requirement. At
one extreme, the Zahiris and some Malikis, Shafiis and Hanbalis rule that a will to an
heir is utterly void, on the authority of a tradition of the Prophet to that effect. Abu
Imama reported: I heard the Prophet say: Allah has already given to each entitled
relative his proper entitlement. Therefore, no bequest in favour of a legal heir. The
aforesaid jurists deem it as an act of injunction against the other heirs who may allow
it, in which case it shall not be a bequest but a gift. On the other hand, the Shia Ithna
Ashari and Zaidi schools accept as valid a will within one-third of the net estate
without requiring the consent of the other heirs . A middle course is steered by the
Hanafis and majority of Malikis, Shafiis and Hanbalis who hold that a will to an heir
is valid subject to the consent of the other heirs, adding to the cited tradition of the
Prophet except if allowed by the hires.
No Muslim can bequeath more than one-third of the residue of his estate,
after the payment of debts and other chargers. When a Muslim dies, his debts and
funeral expenses are to be paid first; thereafter, out of the residue only one-third can
be disposed of by will. For e.g.,Omar dies leaving Rs. 3,500 as his gross assets. His
funeral costs Rs. 100 and his debts amount to Rs. 400; the balance is Rs. 3,000. Hence
the bequeathable third amounts to Rs. 1,000 and he cannot dispose of more than this
amount by will.
But if the hires do not give consent, the Hanafi law provides that the bequests
be rateably reduced or abated. The principle is called the abatement of legacies. The
Ithna Ashari law, however, does not recognize the principle of abatement of

legacies. Shia law says that if several bequests are made through a will, priority
would be determined by the order in which they are mentioned. The first, bequest
takes effect first and thereafter the subsequent bequests, unless the bequeathable third
is exhausted. For example, a testator leaves 1/12 of his estate to A, to B and 1/6 to
C and the hires refuse their consent to these bequests, then A would take 1/12, and B
would take , but C who is mentioned last would get nothing, as the one-third
(1/12+1/4=1/3) is exhausted between A and B. There was however, a curious
exception to this rule; if in the above example, A and B are both to take 1/3 each the
later bequest prevails; so B will have preference over A who will get nothing.
If bequests are for religious or pious purposes but exceed the legal limit of
one-third then, the priority would be determined in the following order:
a)
Bequest for fariaz (i.e., those duties which are expressly ordained in the Koran,
for instance, performance of haj)
b)
Bequest for wajbat (i.e., those acts that are recommended by the Koran, but are
not obligatory, for instance, charity on day of breaking the fast); and
c)
Bequest for nawafil (i.e., voluntary but pious acts which are not even
recommended, for instance, building a bridge or an inn).
The reason for limit on bequeathable property as the policy of the Muhammadan
Law, viz., to prevent a testator from interfering by will with the course of devolution
of property among his heirs according to law. It safeguards against a breach of the ties
of the kindred, practice of favouritism and prejudice, and violation of the Koranic
principles of inheritance. The object also includes the concern to see that no heir is left
destitute. The ban against bequest to stranger (i.e. a non-heir) in excess of one-third is
subject to following exceptions, that is, may be relaxed in the following cases:
1.
Where, subject to the provisions of any law for the time being in force, such
excess is permitted by a valid custom;
2.
Where there are no heirs of the testator;
3.
Where the heirs existing at the time of the testators death, consent to such
bequest after his death;
4.
Where the only heir is the husband or the wife and the bequest of such excess
does not affect his or her share.
As is well known, a Muslim testator may not make bequests which, in
aggregate, exceed one-third of his net estate unless, at least, heirs consent thereto after
his death (or, in the Shia view, also during his lifetime). This is in most cases
eminently reasonable. But a Sunni Muslim is also precluded from making any bequest
whatever to one who is entitled to a share in his estate as an heir unless, again, the
other heirs consent thereto after his death. This rule is intended to prevent him from
altering in any way the division of his estate between different heirs, as prescribed
under the law of inheritance . Again, moreover, this is perfectly reasonable as a
general rule, but circumstances often arise in which there may be excellent reasons for
making special provision for a disabled child, for example, one who has been

members of the family. The Shia law has always allowed this; and such freedom of
bequest, within the bequeathable third, would seem to be the natural implication of
some of the verses of inheritance in the Koran. So, recent reforms in Egypt, the Sudan
and Iraq have made this lawful for all Muslims. It is obvious, moreover, how much
the relaxation of the rule previously accepted by Sunnis in this matter would benefit
widows since their husbands could then leave them a bequest to augment their pitiably
inadequate share on intestacy.
Essentials of a will - The following are the essentials of a will.
Legal declaration by the executants
The declaration by the executants of the will, must be legal viz. should be in
conformity with the provisions of the Indian Succession Act, 1925 and must be by a
person competent to make it.
Competency of person to make the will
Every person of sound mind not being a minor can execute a will. Persons who are
deaf, dumb or blind are not incapacitated for making a will, if they are able to know
what they do by it. A person who is ordinarily insane may make a will during an
interval in which he is of sound mind. No person can make a will, while he is in such
a state of mind, whether arising from intoxication or from illness or from any other
cause that he does not know what he is doing. The testator should be capable of sound
and disposing mind and memory. The declaration should be relating to the testator's
property and the testator should intend to dispose off his property after his death. If
the declaration is not to take effect or if the testator wanted to carry out the intention
made in the declaration immediately, the instrument will not be a will, the will should
be revocable during the lifetime of the testator. If the instrument is intended to come
into effect with immediate effect and to be final and irrevocable, it will not be a will.
Law relating to wills
The will made by any Hindu, Buddhist, Sikh or Jain is governed by the provisions of
Chapter VI of Indian Succession Act, 1925. However, the provisions of the Indian
Succession Act, 1925 are not applicable to Mohammadans, who can dispose off the
property by a will in accordance with the Muslim Law. Under Muslim Law, the will
executed by a Mohammadan is not required to be probated.
Execution of will
Every testator, not being a soldier employed in an expedition or engaged in actual
warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his
will according to the rules.
Signature of the testator on the will
The testator shall sign or shall affix his mark to the will or it shall be signed by some
other person in his presence and by his direction. The will should be dated.
Attestation
'The will shall be attested by two or more witnesses. The attestation by the witnesses
should be by the signatures of the witnesses and not by their mark and the attestation

should be done after the testator has executed the will and not before. The attesting
witnesses need not know the contents of the will and the testator need not disclose the
nature or contents of the document.
Property, which can be, disposed off by Will
Any movable or immovable property can be disposed off by a will by its owner.
Under Mitakshara Law, a Hindu coparcener could not dispose off his undivided
coparcenary property by will, even if other coparceners consented to it. But section 30
of Hindu Succession Act, 1956 provides that any Hindu may dispose off by will or
other testamentary disposition any property, which is capable of being so, disposed of
by him in accordance with law. The interest of a male Hindu in a Mitakshara
coparcenary property is deemed to be property capable of being disposed off by him.
Who can be a devisee under a will
Any person capable of holding property can be a devisee under a will and therefore a
minor, lunatic, a corporation, a Hindu deity and other juristic person can be a devisee.
Sections 112 to 117 of Indian Succession Act, 1925 put some restrictions on the
disposition of property by will in certain cases. Dispositions of property by will in
some cases have been declared void.
Wills by Muslims
Under Muslim Law, every adult Muslim of sound mind can make a will. A minor or a
lunatic is not competent to execute a will. Though under Muslim Law, a person gets
the majority at the age of 15 years, but in India, the case of will is governed by the
Indian Majority Act according to which the minority terminates at the age of 18 years,
but if the guardian has been appointed by the Court for the minor, the minority will
terminate at the age of 21 years. The legatee can be any person capable of holding
property and bequest can be made to non-Muslim, institution, and charitable purposes.
A bequest can be made to an unborn person and a will in favour of a child who is born
within six months of the date of making the will can be a legatee. But according to
Shia Law, a bequest to a child in the womb is valid, even if the child is in the longest
period of gestation i.e., ten lunar months. The property bequeathed must be capable of
being transferred and the testator should be the owner of the said property. The
property bequeathed should be in existence at the time of death of the testator, even if
it was not in existence at the time of execution of the will. A Muslim cannot bequest
his property in favour of his own heir, unless the other heirs consent to the bequest
after the death of the testator. The person should be legal heir at the time of the death
of the testator. However, under Shia Law, a testator may bequest in favour of his heir
so long as it does not exceed one third of his estate and such bequest is valid even
without the consent of other heirs. The consent can be given before or after the death
of the testator. But if the entire estate is bequeathed to one heir excluding other heirs
entirely from inheritance, the bequest will be void in its entirety. According to Sunni
Law, the consent by the heirs should be given after the death of the testator and the

consent given during the lifetime of the testator is of no legal effect. Under Shia Law,
the consent by the heirs should be free and a consent given under undue influence
fraud, coercion or misrepresentation is no consent and the person who has given
such consent is not bound by such consent. The consent by the heirs can be given
either expressly or impliedly. If the heirs attest the will and acquiesce in the legatee
taking possession of the property bequeathed, this is considered as sufficient consent.
If the heirs do not question the will for a very long time and the legatees take and
enjoy the property, the conduct of heirs will amount to consent. If some heirs give
their consent, the shares of the consenting heirs will be bound and the legacy in excess
is payable out of the shares of the consenting heirs. When the heir gives his consent to
the bequest, he cannot rescind it later on.
Principle of rate able abatement in case heirs does not give consent.
Under Hanafi Law, if a Mohammedan bequest of more than one?third of the property
and the heirs does not consent to the same, the shares are reduced proportionately to
bring it down to one?third. Bequests for pious purposes have no precedence over
secular purposes, and are decreased proportionately. Bequests for pious purposes are
classified into three categories: 1) Bequest for faraiz i.e. purposes expressly ordained
in the Koran viz. hajj, zakat and expiation for prayers missed by a Muslim. 2) Bequest
for waji-bait i.e. purposes not expressly ordained in the Koran, but which are proper
viz. charity given for breaking rozas. 3) Bequest for nawafali i.e. purposes-deemed
pious by the testator, viz. bequest for constructing a mosque, inn for travellers or
bequest to poor. The bequests of the first category take precedence over bequests of
the second and the third category and bequests of the second category take
precedence over those of the third. Under Shia Law, the principle of rate able
abatement is not applicable and the bequests made prior in date take priority over
those later in date. But if the bequest is made by the same will, the latter bequest
would be a revocation of an earlier bequest
No writing necessary
Under Muslim law, a will may be made either orally or in writing and though in
writing, it does not require to be signed or attested. No particular form is necessary for
making a will, if the intention of the testator is sufficiently ascertained. Though oral
will is possible, the burden to establish an oral will is very heavy and the will should
be proved by the person who asserts it with utmost precision and with every
circumstance considering time and place. But if the marriage of a Muslim has been
held under Special Marriage Act, 1954, the provisions of Indian Succession Act, 1925
shall be applicable and he cannot execute a will under Muslim law.
Revocation of will by a Muslim
The testator may revoke his will at any time either expressly or impliedly. The
express revocation may be either oral or in writing. The will can be revoked impliedly
by testator transferring or destroying completely altering the subject matter of the will
or by giving the same property to someone else by another will.

Registration of wills
Though it is not necessary to register a will, but the Law recognizes a Registered will
when the execution of a will is disputed and when there is an unregistered will. The
provisions relating to registration of the will have been given in sections 40 and 41 of
the Indian Registration Act. The testator, after his death, or any person claiming as
executor or otherwise under a will, may present it to any Registrar or Sub Registrar
for registration. No time limit has been prescribed for registering the will and a will
may be presented for registration at any time.' A will presented for registration by the
testator may be registered in the same manner as any other document. A will presented
for registration by any other person entitled to present it shall be registered, if the
registering officer is satisfied
a) that the will or authority was executed by the testator;
b) that the testator is dead; and
c) that the person presenting the will is entitled to present the same.
The registration of will is not the proof of the testamentary capacity of the testator, as
the Registrar is not required to make an enquiry about the capacity of the testator
except in case the testator appears to him to be a minor or an idiot or lunatic.
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.
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.
Exception to the general rules.- The following are two exceptions to the above
mentioned generals rules:
a) Under Hanafi law, a bequest or more than one-third of the net assets may be valid,
if the heirs, whose rights infringed thereby, give their consent to the bequest after the
death of the testator. In shia law such consent validates the will whether given before
or after the testators death
b) The above rule of bequeathable one-third will not apply to a case where the testator
has no heir. The right of government to take the estate of an heirless person will not, in
any way, restrict the right of a person to make a disposition of his property, as he likes.
In other words, Government is no heir to an heirless person.
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 donees. 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 others . 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. , 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 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 commissioners contention that it
was a gift inter vivos simpliciter .
SUNNI LAW AND SHIA LAW COMPARED
SUNNI LAW
SHIA LAW
1. Bequest by one who commits the
1. Bequest is valid only if the act for
act for suicide before or after
committing suicide was done
making the will is valid
after making the will. Not if the
2. Bequest for unborn person valid
act was done first and then the
if the child is born within 6
will made.
months of the making of the will
2. Bequest for unborn child is valid

3. Consent of heirs
a. For bequest in favour of
stranger up to 1/3rd propertynot required
b. For bequest in favour of heirs
(even 1/3rd) consent of other
heirs necessary.
4. Consent of the legatee presumed
if he dies before consenting.
5. The legacy lapses if the legatee
predeceases the legator.

if the child is born within 10

months of the making of the will.
3. Consent of heirs
a. For bequest in favour of
stranger up to 1/3rd propertynot required
b. For bequest in favour of heir
(1/3rd) consent not necessary.
For more than 1/3rd necessary.
4. There is no presumption; but the
consent of his heirs must be
obtained.
5. In case of death of legatee, the
legacy devolves on his heirs. But
if no heirs, it does lapse back to
the legator.

DIFFERENCE BETWEEN WILL AND GIFT

1.
Gift is an immediate transfer of right or interest, will is a transfer of right to
take effect after the death of the testator.
2.
In a gift transaction, delivery of possession is necessary in a will it is not
required.
3.
The subject of gift must be in existence at the time of gift; it need exist at the
time of making the will. T is sufficient if the subject is in existence at the death of the
testator.
4.
Right of donor to a gift is unrestricted. The right of making a bequest is limited
in two ways.
5.
After completion a gift cannot be revoked unless by a formal decree of a Court;
a will may be revoked at any time after making of it.
INTERPRETATION OF WILLS
The following principles are well established:
(1) In construing a document whether in English or in vernacular the fundamental rule
is to ascertain the intention from the words used; the surrounding circumstances are to
be considered; but that is only for the purpose of finding out the intended meaning of
the words which have actually been employed.
(2) In construing the language of the Will the Court is entitled to put itself into the
testator's armchair and is bound to bear in mind also other matters than merely the
words used. It must consider the surrounding circumstances, the position of the
testator, his family relationship the probability that he would use words in a particular

sense. But all this is solely as an aid to arriving at a right construction of the Will and
to ascertain the meaning of its language when used by that particular testator in that
document.
(3) The true intention of the testator has to be gathered not by attaching importance in
isolated expressions but by reading the Will as a whole with all its provisions and
ignoring none of them as redundant or contradictory.
(4) The Court must accept, if possible such construction as would give to every
expression some effect rather than that which would render any of the expressions
inoperative. The Court will look at the circumstances under which the testator makes
his Will, such as the state of his property of his family and the like. Where apparently
conflicting dispositions can be reconciled by giving full effect to every word used in a
document, such a construction should be accepted instead of a construction which
would have the effect of cutting down the clear meaning of the words used by the
testator. Further where one of the two reasonable constructions would lead to
intestacy, that should be discarded in favour of a construction which does not create
any such hiatus.
(5) To the extent that it is legally possible, effect should be given to every disposition
contained in the Will unless the law prevents effect being given to it. Of course, if
there are two repugnant provisions conferring successive interests, if the first interest
created is valid the subsequent interest cannot take effect but a Court of construction
will proceed to the farthest extent to avoid repugnancy so that effect could be given as
far as possible to every testamentary intention contained in the Will.
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 considered to
be divine in nature and draws on the Quran. The law is unique in itself 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 testators 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.