INTRODUCTION
A will, also known as a testament, is a legal document in which a person, known as the testator, states their desires for how their property should be dispersed after they die and names one or more people, known as the executors, to administer the estate until its final distribution. The testator retains complete ownership and management of the property as long as he or she is alive. The will which is made by the testator does not have any force until the death of the testator. In other words, the death of the testator is necessary for the division of property between the persons who are declared to be entitled to testator property in his will. But testator is not bound by his will that is to say he can at any time change the terms of his will according to his wishes either by cancelling whole the previous will made by him or by making some changes in that will only.
MEANING OF DEFINITION OF WILL
In Muslim law, a will is referred to as ‘Wasiyat’ and a document in which a person states his will is called a “Wasiyatnama”. A will, also known as a Wasiyat, is a document written by the legator in favour of the legatee that takes effect after the legator’s death. According to Muslim law, no one has the right to make a will for their entire property. The purpose of this is to show respect for the prophet’s word in order to ensure the legal heirs’ shares.
Tyabji defines Will as “conferment of the right of property in a specific thing or in a profit or advantage or in a gratuity to take effect on the death of the testator. He also says, will means the legal declaration of the intentions of a Muslim with respect to his property which he desires to take.”
According to Hedaya, “will is the endowment with the property of anything after death.”
ORIGIN OF LAW OF WILL[1]
The origin of will under Muslim can be found under the tradition of the Prophet. Sa’d Ibn Abi Waqqas said: “The Messenger of God used to visit me at Mecca, in the year of the Farewell Pilgrimage on account of my illness which had become very serious.” 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 that thou leavest them in want, begging of other 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 the wife.”
ESSENTIALS OF A VALID WILL
Under Mohammedan Law, every will made by the testator must satisfy the following conditions which are stated as under:
- The person by whom the will is made also known as the testator must be competent to make it.
- The legatee, or person in whose favour the will is made, must be competent to accept the bequest.
- The bequest subject must be lawful.
- The bequest cannot exceed the testator’s powers, which is one-third of their estate.
The above-mentioned requisites are explained below:
- Competency of person making will i.e. testator– The first condition for making a valid will is that person making it should be competent to make it that is he must have attained the age of majority and be of sound mind so that he is able to understand the consequences of his act. A will made by a minor or someone who is mentally ill is not legitimate. Under Muslim law, the age of majority is 15, but in India, wills are governed by the Indian Majority Act rather than personal law, hence the age of majority for making a valid will is 18. In the case of an unsound mind person, Tyabji says that “a will made by a testator whose mind is unsound does not become valid by his subsequently becoming of sound mind. A will made by a person while of sound mind becomes invalid if the testator subsequently becomes permanently of unsound mind.”
- Competency of the person in whose favour will is made i.e. legatee – The second condition for a valid will is that the legatee must be capable of receiving property. A legatee under a will can be anyone who is capable of possessing property. As a result, taking a bequest is not limited by sex, age, creed, or religion. After the testator’s death, the legatee’s direct or implicit consent is required to complete the title to the subject of the bequest.
- The bequest subject must be lawful – Next condition which is to be fulfilled for making a valid will is that property which testator wants to bequeath after his death must be capable of being transferred and property must be owned by him. If he is not the owner of the property then a valid transfer cannot take place. The bequeathed property must exist at the time of the testator’s death, but not at the time of his making will.
- Bequest not to exceed testamentary power – The last condition to be fulfilled in order to make a valid gift is that it should not exceed the power conferred under Muslim law to make a will. The restrictions on making a will are with respect to person and property.
HOW CAN “WILL” BE REVOKED?
A will can also be revoked any time before the death of the testator. It can be done either expressly or impliedly.
(a) Express revocation – Express revocation means revocation of will either orally or by writing
(b) Implied revocation – Implied revocation means revocation by any act of the testator i.e. when the testator does any act which shows his intention to cancel the bequest. His intention may be implied when he dispose property before his death to any other person or when he destroys the property.
CONCLUSION
A will is a legal document that grants a legatee a gratuitous right to property that is postponed until the legator’s death. It gives a legator the chance to correct the law of succession to some extent. This is because it allows some relatives who are technically banned from inheritance under Islamic law to obtain a piece of the property. The Islamic law of Will permits a person to distribute his possessions to someone of his choosing. At the same time, it preserves a sensible balance between inheritance law and property devolution under a Will.
Author’s Name: Mohit Sharma (Vidyasthali Law Collage)
[1] Dr. Paras Diwan, Muslim law in Modern India.
