DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW”

“WILLS UNDER MUSLIM LAW

”

SUBMITTED TO- SUBMITTED BY-

Mrs. SAMREEN HUSSAIN SHIVANI SINGH
ASSISTANT PROFFESOR OF LAW ROLL NO- 127
DR. RMLNLU, LUCKNOW. B.A.LLB(HONS.)/SEM IV

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 TABLE OF CONTENT

 INTRODUCTION……………………………………………….03

 CONCEPT……………………………………………………….04

 REQUISITES…………………………………………………….06

 WILLS UNDER DEATH ILLNESS…………………………….10

 CONCLUSION…………………………………………………. 12

 BIBLIOGRAPHY………………………………………………. 13

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 INTRODUCTION

Will is the legal declaration of a person’s 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 person’s 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.

There are certain characteristics which should be included in the instrument of will such as:

1. The Name of the Testator,

2. Right to appoint Legatee,

3. To take effect after death,

4. Intention of the Testator is supreme.

Every person who is competent to contract may make a will, but he must be major, sound
mind and willing to write a will. A person of unsound mind can also make a will but only in
lucid intervals. A Will cannot be made by some persons i.e. minors, insolvent, persons
disqualified under any law by the court.

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 decide 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

3
and customs. All such rules related to Muslim law on Wills will be discussed in detail in the
assignment.

RESEARCH QUESTIONS: -
1) What are the essential requisites for a valid will under Muslim law?
2) What is the difference between Sunni and Shia law for a valid will under Muslim
law?
3) How are the wills during death/illness valid under Muslim law?
4) What is the difference between gifts and wills?

RESEARCH METHODOLOGY: -
Research methodology used in making of this project will be doctrinal research methodology,
since this methodology is best suited to the theme of the project. To fulfil all above said data
collected through acts, case laws, articles and website will be analysed.

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 CONCEPT

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.1 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 death2. 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 testator3.

Tayyabji4 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 Muslim to decide for the distribution of his property. Thus the Muslim
law of wills presents a compromise between two opposite tendencies- namely, one, not to
disturb or interfere with the divine law of distribution of property after death, and two, the
supposed moral duty of every Muslim to make arrangements for the distribution of his
property within prescribed limits. According to Fyzee the Muhammadan sentiment is in most
cases opposed to the disposition of the property by will, and yet it is a moral exhortation, it is
thus a reconciliation between the dual insistence on moral exhortation as well as legal
rectitude. The will of a Muslim is governed in India subject to the provision of the Indian
Succession Act, 1925, by the Muhammadan Law.

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

1
Section2(h), Indian Succession Act, 1925

2
Asaf A. A. Fyzee, Outlines of Muhammadan Law (Oxford Univ Pr (Txt); 5 edition (30 September 2008)
3
Ibid
4
F.B. Tayyabji, Muhammadan Law, 4th edn., Bombay: N.M. Tripathi Private Ltd., 1968, p. 754

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ascertained”5. 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 will6. 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 will7. 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 deceased8.

In the case of Aulia Bibi v. Ala-ud-din9, 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 speak10.

“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 place11. 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
5
Mahomed Altaf v. Ahmed Buksh, (1876) 25 W.R. 121 PC
6
Mazar Husen v. Bodha Bibi (1898) 21 All. 91
7
Said Kasum v. Shaista Bibi (1875) 7 N.W.P 313
8
Jeswant Singjee v. Jet Singjee (1844) 3 M.L.A. 245
9
[1906] I.L. 28 All 715
10
Asaf A. A. Fyzee, Outlines of Muhammadan Law (Oxford Univ Pr (Txt); 5 edition (30 September 2008)
11
Venkat Rao v. Namdeo (1931) 58 I.A. 362

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satisfied of the contents of the direction given12. 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 wasiyat 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 to13. 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 wasiyats in these cases would not take effect if the
contingencies apprehended do not happen, whether they will be in writing or by word of
mouth.

12
Mahabir Prasad v. Mustafa (1937) 41 Cal. W.N. 933
13
And it will not be admitted to probate. Parsons v. Lance, 1 Ves. 190

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 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 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 lawgivers 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 years14. 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

14
The Majority Act, 1875. Section 3

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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 ratification15. The Shia law requires that the testator must be ‘free,
adult, of sound mind and acting on his own free will’. However, the Shia’s allow a will by a
boy of 10 and a prodigal under interdiction if it is for charity.
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 avoided16. 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 parda-nashin 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 arm’s 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 AND HIS COMPETENCE

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
15
F.B. Tayyabji, Muhammadan Law, 4th edn., Bombay: N.M. Tripathi Private Ltd., 1968, p. 754
16
Dr. Paras Diwan, Muslim Law in Modern India, (8th Edition, Reprint 2008)

9
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 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 legatee’s 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 could 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.

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 enough, if it is in

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existence at the time of testator’s 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, or to take the
rents, or future produce, or usufruct for a limited time, for the lifetime of the legatee may
validly constitute the subject-matter of a will17.
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 the subject of the bequest was. 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 testator’s death.
The reason is that a will takes effect from the moment of the testator’s death, and not earlier.
This is the view that prevails in Pakistan and India. However, the view in the Arab countries,
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 made18.

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.
A bequest of an heir is not valid unless the other heirs’ consent to the bequest after the death
of the testator.

17
Dr. Paras Diwan, Muslim Law in Modern India, (8th Edition,Reprint 2008)
18
Tahir Mahmood, The Muslim Law of India (Lexiz Nexis Butterworths, 3rd edition, 2002)

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 WILLS DURING DEATH-ILLNESS

A gift without consideration made in marz-ul-maut (death illness) takes effect as a will.
Under Hanafi law, it takes effect to the extent of bequeathable third, if it is not in favour of
the hires, and the possession has been taken by the 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 others19. 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
other heirs. Further, the peculiarities of the Shia and Sunni laws also apply. In Commissioner
of Gift Tax, 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
commissioner’s contention that it was a gift inter vivos simpliciter20.

SUNNI LAW AND SHIA LAW COMPARED

19
Safia Begum v. Abdul Rajak, (1944) 47 Bom LR 381, 384
20
V.P. Bharatiya (Editor), Syed Khalid Rashid's Muslim Law, (Eastern Book Co; 4th Revised edition edition
(20 April 2004)

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 SUNNI LAW SHIA LAW

1. Bequest by one who commits the act for 1. Bequest is valid only if the act for
suicide before or after making the will is committing suicide was done after
valid. making the will. Not if the act was done
first and then the will made.

2. Bequest for unborn person valid 2. Bequest for unborn child is valid if the
if the child is born within 6 months child is born within 10 months of the
of the making of the will. making of the will.

3. Consent of heirs- 3. Consent of heirs a. For bequest in

favour of stranger up to 1/3rd property-
a. For bequest in favour of stranger up to not required b. For bequest in favour of
1/3rd property- not required, b. For heir (1/3rd) consent not necessary. For
bequest in favour of heirs (even 1/3rd) more than 1/3rd necessary.
consent of other heirs necessary.
4. There is no presumption; but the
4. Consent of the legatee presumed if he consent of his heirs must be obtained.
dies before consenting.
5. In case of death of legatee, the legacy
5. The legacy lapses if the legatee devolves on his heirs. But if no heirs, it
predeceases the legator. 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 enough 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.

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 CONCLUSION

The 'Muslim Will' Law is different from the law governing wills of Hindus or wills made
under the Indian Succession Act, 1925. The law of Wills under Muslim law as discussed
above is derived mainly from Hedaya, the Holy Quran, custom of the Prophet and different
case laws. Testamentary disposition of property is divine in nature and draws on the Quran.
The law is unique as:
1. It puts a limit on how much can be bequeathed.
2. To all whom it can be made.
3. No formality required.
It is correct that the general rule under Muslim personal laws in India is that a Muslim may,
by his will, dispose only up to one-third of his property which is left after payment of funeral
expenses and debts without the consent of his heirs. The remaining two-thirds of the
testator’s property must go to those who are his heirs at the time of his death. However, the
above restriction on disposition of property by will do not apply to a Muslim whose marriage
is solemnized under the provisions of the Special Marriage Act, 1954 (instead of Muslim
personal laws).
A Muslim will or any part thereof may be revoked by the testator at any time before his
death. The revocation may be express (oral or in writing) or implied. Any act, which results
in the extinction of the subject matter or proprietary rights of the testator will impliedly
revoke the will. For instance, if the testator transfers the same property by sale or gift
subsequently to another it amounts to implied revocation.
Wills under Muslim law is a complex concept mainly because of different restrictions on
bequest but is also unique in it and not surprisingly, it has preserved itself since its initiation
without any major change.
It would also be open to a Muslim to transfer his entire property during his lifetime by way of
a gift to any person, unless the gift is a death bed gift. It is regarded under Muslim laws to be
a malady which induces an apprehension of death in the person suffering from it and which
eventually results in his death. A gift made by a person suffering from death illness cannot
take effect beyond one-third of the estate of such donor after payment of funeral expenses
and debt, unless the heirs of the donor give their consent after the death of the donor to the
excess taking effect.

14
 BIBLIOGRAPHY

www.legalserviceindia.com/...of-will-under-muslim-law.
www.legalbites.in/muslim-law-notes-wassiyat-wills
www.vakilsearch.com/advice/muslim-will-islamic-wills.
www.islam101.com/sociology/wills.
www.lawctopus.com/academike/
www.lawctopus.com/academike/
www.blog.ipleaders.in/islamic-law-will.

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