WILL UNDER THE MUSLIM LAW

Introduction

When a person dies his/her property passes to his/her heirs. A person may die with or without a
will. If a person dies leaving a will i.e. dies intestate, the property is distributed among his/her
heirs according to the rules of Testamentary Succession. In other words, the property is
distributed as per the contents of the testament or will. On the other hand, if a person (lies
leaving no testament (will) i.e. dies intestate, the rules of intestate Succession are applied for
distribution of the property among heirs.

Will

A 'Will or Testament' is a document, which declares or contains the intention of the owner of the
property as to how his property is to be disposed of (distributed) after his/her death. The will
takes effect on the death of the person making it. It can be revoked by the maker, before his
death.

The Islamic Wills

It should be stressed that when writing a will one should consult an Islamic scholar/legal expert
to ensure that the will complies with Islamic law as well as the law of the country of residence.

When a Muslim dies there are four duties which are to be performed. These are:

1. payment of funeral expenses

2. payment of his/her debts
3. execution of his/her will
4. distribution of the remaining estate amongst the heirs according to Sharia

The Islamic will is called al-wasiyya, a will is a transaction which comes into operation after the
testator’s death. The will is executed after payment of funeral expenses and any outstanding
debts of the testaor. The one who makes a will (wasiyya) is called a testator (al-musi). The one
on whose behalf a will is made is generally referred to as a legatee (al-musa lahu). Technically
speaking the term "testate" is perhaps a more accurate translation of al-musa lahu.

The importance of the Islamic will

The importance of the Islamic will (wasiyya) are the following two hadith:

"It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing
a will about it." (Sahih al-Bukhari)
"A man may do good deeds for seventy years but if he acts unjustly when he leaves his last
testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire.

If, a man acts wickedly for seventy years but is just in his last will and testament, the goodness of
his deed will be sealed upon him, and he will enter the Garden." (Ahmad and Ibn Majah)

The will gives the testator an opportunity to help someone (e.g. a relative need such as an
orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will can
be used to clarify the nature of joint accounts, those living in commensality (eating and drinking
at the same table which creates and cements relationship), appointment of guardian for one’s
children and so on. In countries where the intestate succession law is different from Islamic law
it becomes absolutely necessary to write a will.

Object of Will under Muslim law

Law relating to will or testamentary disposition for Muslim is divine in nature ie, regulated by
Quran and is supplemented by the tradition of probate. There is a permissibility of making a will
to extend of only one-third of the property. The object of the will is therefore twofold.

1) It prevents a person from interfering and defecting the claims of his lawful heirs. So, the
restriction ensures that at least two-third of the property must go by succession. It is
applicable only in those cases, where the testator enjoys his property during his lifetime
and does not dispose of his assets inter vivos. In such cases he is prevented in controlling
the distribution of his property from his grave, and the rules of intestate succession apply
for effecting its devolution.

2) Secondly, by permitting the testator to bequeath one-third of his property, he is

empowered to settle just claims of people, at his pressure, who might not figure in the
heir’s category. These persons might be relatives other than heirs or even strangers to the
family. The will to the extent of one-third can be made for a charitable, pious, or a
religious purpose. However if there is a custom to the contrary which limits the choice of
the testator in choosing a beneficiary with respect to this one-third property, such a
customary practice would be upheld by the law.

It is not necessary that something must have been done or is required to be show as a
contribution by the beneficiary for the testator. The testator can make Will in favour of even a
stranger although usually property is bequeathed for returning the favour of another person such
as services rendered by a friend or a servant or to help financially a relative by marriage, a friend
etc. if he is inclined to do so, he can make a bequest for general public welfare, for a specific
pious purpose or even for a religious institution.
The Will (Al-wasiyyat)

"A will or Wasiyyat" is defined as 'an instrument by which a person makes a disposition of his
property to take effect after the death and which is in its own nature ambulatory and revocable
during his life'.

The Islamic will includes bequests and legacies, instructions and admonishments, and
assignments of rights. Under muslim law both male and female can make a will.

No specific wording is necessary for making a will. In Islamic law the will (wasiyyat) can be oral
or written, and the intention of the testator must be clear that the wasiyyat 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 wasiyyat. A written wasiyyat 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 wasiyyat is executed after payment of debts and funeral expenses. The majority view is that
debts to Allah 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.

Who is testator and whether a minor can be a testator?

Every adult Muslim with reasoning ability has the legal capacity to make a will. An adult for this
purpose is someone who has reached puberty. Puberty is also presumed at the completion of the
age of fifteen years. The Maliki and Hanbali fiqh also consider the will of a discerning (tamyiz)
child as valid.

Under English Law children must be at least 18 years of age to make a valid will (similarly in
most of the United States of America) unless they are a military personnel in which case they
may make a valid will at the age of 17.

The testator must have the legal capacity to dispose of whatever he bequests in his will. When
making a will the testator must be of sane mind, he must not be under any compulsion and he
must understand the nature and effect of his testamentary act. The testator must own whatever he
bequests. The testator has the right to revoke his will by a subsequent will, actually or by
implication.

The Testator has limited power or not

Muslim law limits the power of bequests to one-third of the net assets. The two-third must in any
case be distributed according to rules of intestacy, unless there are no heirs at all claiming
adversely to the legatees, which is rather a remote contingency. Thus a muslim can validly
bequeath one-third of his net assets, when there are heirs. The net assets are ascertained after
payment of the funeral expenses of the deceased, his debts.etc.
If there are no heirs, testamentary power can be exercised over the entire property of the testator.
If all heirs agree and give their consent, then one-third limit can be exceeded. Legal heir is one
who is a legal heir at the time of death of the testator.

Like in every other community, in the case of Muslims also the intention is the most important
factor. Muslims can, however, make their wills even orally. If the testator cannot reduce his will
to writing, his signature itself will suffice.

Where a Muslim makes a will in writing the will needs neither signature nor attestation. Only
unambiguous intention will serve the purpose, although a great difficulty arises in proving the
oral will.

The Legatee (Al-musa lahu)

A bequest to be valid, when 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. 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
legatee’s estate according to the Hanafi fiqh because non-rejection 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 Shafii fiqh. But according to the
Hanbali fiqh, the bequest devolves upon the legatee’s heirs who may accept or reject it.

Who can be legatee for Muslims

A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of
the testator. Its purpose is to prevent the testator from interfering by will with the course of
devolution of property according to law among his heirs, although he may give a specified
portion as much as a third to a stranger.

The reason is that a bequest in favor of an heir would be an injury to other heirs, as it would
reduce their share, and would consequently induce a breach of the ties of kindred.

A bequest in excess of the bequeathable third or in favor of any heir, are validated and will be
given effect to if after the death of testator the other heirs, whose rights are affected by such
dispositions, give their express or implied consent to the bequest.

Thus as per Muslim law a bequest to an heir to the extent of one-third cannot be upheld unless
the other heirs consent to the bequest after the death of the testator. A bequest to a person entitled
to succeed as heir to the prejudice of the other heirs is void in Muslim law.

If the heirs are minors at the lime of testator’s death, consent must be given only after attaining
majority. A guardian is not competent to give consent on behalf of a minor. A bequest may be
made for the benefit of any institution but the same cannot be made in favour of an unborn
person unless such person is child in the womb and is born within six months of the date of will.

But the Shia law recognizes the bequest to a child in the womb if it is born more than six months
after the date of the will but within the longest period of gestation from the date of the bequest.

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 Malikifiqh 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 executors.
If one starts acting as an executor, one will be regarded as having accepted the appointment, both
in Islamic and in English law.

Does the Executor need to be a Muslim or not?

It is not necessary that the executor to the will of a Muslim should be a Muslim. A Muslim may
appoint anybody, whether he is Hindu, Christian or any non-Muslim to be his executor.

Known roles of the person’s involved in a Muslim will

Testator - The person, who makes/creates a will is called 'Testator'.

Legatee - The person/persons, in whose favour, the will is created is called 'Legatee',

Executor - The testator, while executing the will, may appoint a person to execute the will in
accordance with its contents (after his death). He is called 'Executor'. In the absence of the
appointment of Executor by the testator, the Court may appoint a person called 'Administrator' to
execute the will.

Terms involved in a Muslim will

Legacy

The subject matter of the will is called 'Legacy'. It is the property to be distributed among the
heirs.

Codicil

Codicil is an instrument math in relation to will. It is a part of the will.

Abatement of Legacies

When a testator bequeaths more than one third of the property, and the heirs refuse to give
consent, it is to be adjusted accordingly.

Lapse of Legacy

If the Legatee does not survive, the bequest (Property under will) is distributed as if there is no
will.

Essentials/Requisites of will

A will to be valid, the following conditions are to be satisfied.

1. Capacity./Competence of Testator;

2. Competence of Legatee;

3. Subject Matter:

4. Testamentary Capacity.

1. Capacity of Testator

According to Muslim Law, any person, who is a major and is of sound mind can make a will.
However, a minor can make a will subject to ratification on attaining majority. According to
Muslim Law, the age of Majority is 15 years, but it is not applicable to the wills in India.

2. Competence of Legatee

Any person having capacity to hold the property can be a legatee. The Legatee may be a Muslim
or a Non-Muslim. man or woman a major or a minor or even a child in the womb provided the
child is born within 6 months of the death of the testator.

3. Subject flatter

A Muslim can bequeath any property movable or immovable, corporeal or incorporeal, which
must be in existence and transferable at the time of testator's death.

4. Testamentary Capacity

A Muslim cannot dispose of by will more than 1%3 of the net assets after allowing (meeting) for
the debts and funeral expenses of the testator (under both Hanafi Law and Shia Law). The
remaining 2/3 share should be made available for distribution amongst the heirs. Even for
bequeathing the 1/3rd share, the Muslim has to obtain the consent of the other heirs. Relevant
Case on this point is: GULAM MD.vs. GULAM IIUSSAIN, AIR 1932 PC 81 ... Held in this
case that, bequest in favour of heirs without the consent of other heirs is invalid.

An heirless Muslim can bequeath his entire property. In case, his wife, is the only heir, he can
bequeath all his properties minus the share of his wife (as per Koran table).

Formalities of Wills

Muslim law requires no specific formalities for creation of a will. It may be made in writing or
oral or even by gestures. Though it is in writing, it need not be signed by the testator and attested
by the witnesses (Ramjilal vs. Ahmed, AIR 1952 MP 56). It is necessary that the intention of the
testator should be clear and unequivocal.

Construction of Will
A Muslim will is to be construed in accordance with the rules of construction of the will as laid
down in Muslim Law. Will is a document created by any person during his life time, which
operates after his death. The contents of the will are to be implemented to fulfill the intention or
desire of the testator after his death. Sometimes, the contents may not be clear. In such a case, it
may be interpreted as per the option of the heirs.

For example, if the testator, to his will, bequeaths one house to heir A and the other house for
heir B without any specification. Then, the heirs have to make necessary arrangement.

Revocation of Will

A Muslim will or any part thereof may he revoked by the testator at any time before his death.
The revocation may be express (oral or in writing) or implied. A will may be expressly revoked
by tearing it off or by burning it. 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.

DEATH - BED - GIFT : (MARZ-UL-MIAUT)

When a person creates/makes a gift out of an apprehension (fear) of imminent death and dies
later, it is called "Death-Bed-Gift". In other words, if a person makes a gift during illness and
dies later, it is called Death-Bed-Gift or Matz-UI-Maut. It is subject to two restrictions: (i)
disqualification of heir; and (ii) property disposed of should not exceed 1 /3 of the net assets.
These restrictions may he relaxed with the consent of the heirs.

The Death-Bed-Gift is valid only when the donor dies of illness during which the will was made.

Essentials of Death-Bed-Gift (Marz-U1-Maut):

I . There must he an apprehension as to immediate death.

2. To effect the transfer of property, by way of gift in anticipation of death.

3. Mere apprehension of death as to old age is not sufficient.

Section 129 of T.P. Act deals with Death-Bed-Gift or Donatio Mortis Causa. Similarly, Section
191 of the Indian Succession Act. 1925 deals with Death-Bed-Gift with regard to movable
property.

With regard to the restrictions of making a death-bed-gift by a Muslim, the rules with regard to
disposition to the extent of 1/3 td' net assets (after meeting debts and funeral expenses of testator)
and also to obtain the consent of other heirs, are applicable in the Case of Mart-1JI-Maui also.