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INTRODUCTION A Will or Testament or Wasiyat has been defined as “an instrument by which a person makes disposition of his property to take effect after his death.” Tyabji defines Will as “conferment of 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.” A Will under the Indian Succession Act, 1925, which is the general law of testamentary succession for Indians, is defined as: “Will is the legal declaration of the intention of a testor with respect to his property which he desires to be carried into effect after his death”. The distinguishing features of a Will from other depositions of property by its owner are: i. Its taking effect after the death of the testor; and ii. Its revocability. Unlike any other disposition (e.g. sale or gift), the testator exercises full control over the property bequeathed till he is alive: the legatee or beneficiary under the Will cannot interfere in any manner whatsoever in the legator's power of enjoyment of the property including its disposal. Executing the property does not adversely affect the power of the owner to transfer the property in favour of any person including the legatee either inter vivos or even through another testamentary disposition. A Will by its very nature is revocable. It can be revoked by a formal cancellation or destruction or can be automatically revoked by the testator executing another Will of the same property. It can be rendered meaningless if the testator after executing the Will transfers the property or nothing is left that can be the subject-matter of the Will due to an involuntary disposition, such as, in execution of a money decree for the payment of the debts of the testor. A Will executed by a person will also be revoked if he loses his sanity and becomes of unsound mind subsequent to its execution.

OBJECT AND SIGNIFICANCE OF WILLS The object of Wills according to the tradition of the Prophet is to provide for the maintenance of members of family and other relatives where they cannot be properly provided for by the law of inheritance. At the same time the prophet has declared that the power should not be exercised to the injury of the lawful heirs. A bequest in favour of an heir would be an injury to the other heirs as it would reduce their shares and would consequently induce a breach of the ties of kindred. Thus the policy of the Muslim law is to permit a man to give away the whole of his property by gift inter vivos, but to prevent him, except for one third of his estate, from interfering by Will with the course of the devolution of property according to the laws of inheritance. A Will offers to the testator the means of correcting to a certain extent the law of succession, and enabling some of those relatives who are excluded from inheritance to obtain a share in his property, and recognizing the services rendered to him by a stranger.

ESSENTIALS OF A VALID WILL 1. Qualifications for the Will 2. Subject-Matter (property) of bequest must be a valid one (Qualitative requisite) 3. Bequest must be within the limits imposed on the testamentary power of a Muslim (Quantitative requisite).

QUALIFICATIONS FOR THE PARTIES A. Capacity for a Testator (Al-musi) The person who makes a Will is called legato or testator. A legato, who has the following qualifications, has capacity to make a Will: i. Mohammedan

: A legator must be a Mohammedan.

ii. Sex

: A legato may be a male or female.

iii. Status

: A legator may be married or unmarried.

iv. Age of Majority : A legator must have attained the age of majority. The age of majority is the age prescribed under section 3 of the Indian Majority Act, 1875 as

amended in 1999, which now means 18 years. But, if a person, who had made a Will during his minority, ratifies the Will upon attaining majority, the Will becomes valid. v. Soundness of mind: At the time of making a Will, the legator must be of sound mind. A Will made by an insane person would not become valid even if the legato recovers after that. A Will made at a time when the legator is of sound mind even though in lucid intervals, the Will would be valid. vi. Ownership of property : A legato can make a Will of his or her own property, in other words, the ownership of the property must be with the legato, at the time of making a Will. vii. Free Consent

: It is very important that a Will must be made with the free

consent of legato. A Will made by a legato under coercion, undue influence, or fraud is invalid. viii. A Minor’s Will

: A minor cannot make a Will but a Will of a minor can be

ratified by him on attaining majority. ix. Suicide attempt by legator : Under Shia law, a Will made by a person who has taken poison, or has wounded himself with a view to commit suicide, is not valid, it will void. However, under Sunni law, the Will executed in such circumstances is perfectly valid. If the legato executes a Will before attempting to commit suicide, the Will is valid under both Sunni as well as Shia law.

B. Capacity for a Legatee (Al-musa lahu) A legatee, who has the following qualifications, has capacity to take a Will: i. Mohammedan: A legatee may be Mohammedan or non-Mohammedan. After the execution of the Will, to a non-Mohammedan, the property will be subject to a personal law of the legatee. ii. Sex

: A legatee may be a male or a female.

iii. Status

: A legatee may be married or unmarried.

iv. Age of Majority: A legatee may be a major or minor. v. Soundness or Unsoundness of mind: A legatee may be an insane. vi. Consent of Legatee: Consent of the legatee is also necessary. vii. Existence of Legatee: At the time of the legator’s death, the legatee must be in existence. Similarly, if a bequest is made for the benefit of an institution, such should also be in existence at the time of the legator’s death.

viii. Unborn Legatee: A bequest in favour of an unborn person is void. However, bequests to a child in womb may be made provided it is born within six months of the death of the legator. Therefore, the child in its mother’s womb is a competent legatee. ix. Bequest to Heir: Under the Hanafi law, a bequest to an heir is not valid unless the other heirs consent to it, impliedly or expressly, after the death of the legator, but under the Ithna Ashari law such consent may be made in anytime. The consent of all heirs is not required, even a single heir may consent as to bind his share. x.

Joint legatees : A Will may be made jointly to two or more persons. In case of joint legatees, if any one legatee is capable of being so from the time of beginning, then the entire legacy will go to the other remaining legatees.

xi. Murderer of Legator: A person who has caused the death of the legator, cannot be a competent legatee.

SUBJECT MATTER OF WILL (BEQUEATHABLE PROPERTY) AND ITS

VALIDITY

The testator must be the owner of the property to be disposed by will; the property must be capable of being transferred; and, the property must he in existence at the time of testator's death, it is not necessary that it should be in existence at the time of making of Will.

Any kind of property, movable or immovable, corporeal or incorporeal, may be the subject matter

of

a

Will.

In order to be a valid bequest the grant in the bequeathed property must be complete or absolute. A bequest has to be unconditional. If any condition is attached, say the legatee shall not alienate the subject of legacy, the condition is void and the bequest is effective without condition.

Likewise,

a

bequest

in

future

is

void,

and

so

does

a

contingent

bequest.

However, an alternative bequest of property (i.e. to one or failing him to the other person) is valid. Thus, when the testator willed that his son if existing at the time of his death will take the bequest, if not in existence his son’s son will, and failing both it will go to a charity, was held

valid

(Advocate

General

V.

Jimbabai)

Creating of ‘life estate’ is not permissible under Sunni law; the bequest of a life estate in favour of a person would operate as if it is an absolute grant. Under Shia law , however, the bequest of a life estate in favour of one and a vested remainder to another after his death is valid.

LIMITATION ON TESTAMENTARY DISPOSITION A Muslim can transfer his entire property through gift but, he has no right to make a Will of his whole property. Under Muslim law, a Muslim has not given unlimited powers for testamentary disposition but two limitations have been put:

1. Limitation on bequest to heirs 2. Limitation on bequeathable property (the property, which remains after the payment of funeral expenses and debts incurred by a deceased person is called the bequeathable property)

A. Limitation on bequest to heirs: The reason for putting restriction on the bequest in favour of heirs, seems to be intended to prevent of the showing of favouritism to any heir to the prejudice of the others, and this defeating the policy of the Quaranic injunctions as to the division of heritage according to fixed principles. Such restriction safeguards against a breach of the ties the kindred. The following thing is important regarding limitation on bequest to heirs:

i. Bequest to Heirs: No bequest can be made to an heir, unless the other heir consent to it. At the time of the death of the testator, his heirs are determined. This rule is based on a tradition of the Prophet.

ii. Who are Heirs: Heirs are determined after the death of a person. A person may not be an heir during the life-time of a testator but may become an heir after his death. For example, A makes a bequest of 1/3 of his property to his grandson. A has got a son and a wife at the time of making a Will. At this time a grandson is not the heir, but A’s son predeceases his and A’s grand-son becomes the heir, so the bequest in his favour is invalid.

iii. Consent of other heirs: If a bequest is made in favour of an heir, such may be valid if the other heirs of the testator consent to it. The consent of the heirs may be express or implied but silence cannot amount to consent.

iv. The only exception would be, where a Muslim left no heirs, he can bequeath his entire property which will not, in that case escheat to the Government but Will go to universal legatee. Rule of Consent: The consent of the heir is essential if a bequest is made in favour of an heir. The consenting heirs must be major and of sound mind. But if the heirs are minors at the time of testator’s death, consent must be given y them on attaining majority. Here minor’s guardian’s consent do not work. Consent should be given after the testator’s death. If consent is given during the lifetime of the testator, that will not be a valid consent. The reason for making such a rule is obvious; before the death of the testator it is not known as to who would be heirs and to what extent. If the consent of the heirs is not obtained, the bequest would be void. Even a single heir may consent so as to bind his share. It is immaterial that at the time when the heirs gave his consent he was an insolvent. In Kallobai v. Babukhan, the court held that the consent of other heirs should be taken. In absence of consent of other heirs bequest to heir is not valid. Will executed in favour of daughter is ineffective even to the extent of legal third in absence of consent of other heirs, i.e., sons. By giving consent, an heir approves the Will only in respect of his own share in the testator’s property. Where some of the heirs consent and the others do not, the bequest is payable out of the shares of the consenting heirs alone. Once consent is given, it cannot be withdrawn even if made under a mistake of law. On the other hand consent of heir would not be valid after it was previously repudiated. v. Shia Law: Regarding the time of getting consent of other heirs, Ithna Ashari law differs. Under it, consent may be given either before or after the death of the testator. Such a consent need not be ratified by the heirs after testator’s death.

A person who is claiming under a Will has to establish that other heirs had given their consent to bequest. In this case evidence was lacking of consent, hence the claim failed. B. Limitation on bequeathable Property: The testamentary power of a Muslim is limited to the bequeathable one-third. The one-third of the heritable estate within which a /muslim has full legal freedom of testamentary disposition is called the ‘bequeathable third’. So the bequeathable onethird, means a third of the estate of a testator. One-third will be counted after paying general expenses and debts. Following are few exceptions, where excess of one-third is permitted: i. Consent of heirs: A bequest made in favour of a stranger who is not an heir at the time of the testator’s death must not exceed 1/3 of the entire property of the testator. For example, if a Will is made in favour of a stranger which is in excess of 1/3 of its value and the heirs do not consent to it, the bequest will take effect in respect of1/3 only and the other 2/3 will go to the heirs, according to their legal shares. So, a bequest in excess of one-third is valid to a stranger if the heirs gave their consent to it after the death of the testator. The reason behind this is obvious, because the object behind this restriction is to protect the interest of the testator’s heirs. ii. Wife or husband as the sole heir: Where the Muslim dies leaving behind his wife or her husband as a sole heir, then if he is male, he can bequeath 5/6 of his property and if female she can bequeath 2/3 share of the property. For example, if A, a wife, makes bequest of her entire property to C, a stranger and dies having B, her husband as her sole heir. If the husband does not consent to the bequest in favour of C, then the Will is valid to the extent of 2/3 in favour of C, the stranger. A Muslim testator made a bequest in favour of one of his heirs only. It is permissible when other heirs (sharers) consent to that and that too after the testator’s death. Mere silence by other heirs by not participating in concerned proceedings and by remaining ex-parte cannot be considered to be an implied consent. Neither inaction nor silence an be the basis of implied consent.

FORMALITIES FOR MAKING A WILL Under Muslim law, though there are no specific formalities for making a valid Will, the following formalities must be complied with: i. Oral Will: A Will may be made orally and no form of verbal declaration is required. No writing is required. The burden of proving an oral Will is very heavy and an oral Will must be proved with utmost precision and with every circumstances of time and place. ii. Will in writing: No writing is required for the validity of a Will. But when the Will is in writing, no specific form is required. It does not require signature of the testator or attestation by witnesses. iii. Will made by Signs: Under Muslim Law, a will may be made by signs or gestures. iv. A clear and unequivocal intention: In every case, whether the Will is oral or in writing or made by signs, the intention of the testator to make a Will must be clear and unequivocal. A Will is valid if the intention of the testator is ascertained. v. Acceptance by the Legatee: The legatee’s acceptance whether implied or express, is required for the validity of a Will. Such acceptance must be made after the death of the testator. vi. Wills recorded on video can be accepted in court: In an instant ruling that might make settlement of a disputed Will easier, the Delhi High Court on October 10, 2009 admitted video recording of a Will as legally admissible evidence. While deciding a 1985 case seeking grant of a Will, the court was pleasantly surprised to find that it had been duly videographed, making the task of the court easier.

CONCLUSION A Muslim will must be construed primarily in accordance with the rules laid down in the Muhammadan Law, bearing in mind the social conditions that prevail, the language employed and the surrounding circumstances. A will speaks as in modern law, from the death of the testator. The Court should as far as possible give effect to the intention of the testator when there is ambiguity in the will. The heirs may also be asked to interpret it. While determining the rules guiding the interpretation of wills, it is essential to remember the differences in the law of wills with regard to Sunni Law and Shia Law. Thus summarising the differences:

a. In Sunni Law, the bequest to an heir is invalid even to the extent of one-third of the total property of a testator. Whereas in Shia Law, the bequest to heirs is valid up to the extent of onethird of the property. b. The Consent of the heirs must be given after the death of the testator in Sunni Law but in Shia Law, the consent of the heirs may be given before of after the death of the testator. c. The bequest in favour of a child in the womb of his mother is valid provided he or she is born within six months of making a will in Sunni Law but it is up to ten months under Shia Law. d. A will by the testator who later commits suicide is valid in Sunni Law. This is invalid in Shia Law unless the will is made before taking any step towards commission of the act of suicide for the will to become valid. e. The Legacy has to be accepted after the death of the testator in Sunni Law. Legacy under Shia Law can be accepted before or after the testator’s death. f. Legatee who causes the death of the testator cannot take his property under Sunni Law. Under Shia Law, if the death of the testator was caused by the legatee accidently, then the property can be taken but not otherwise. g. Under Sunni Law, if the legatee dies before the testator, the legacy lapses. Under Shia Law, if the legatee dies before the testator, the legacy will lapse only when either the legatee dies without leaving an heir or where the testator himself revokes the will. If an heir exists, the legacy passes onto the heir if the will is not revoked. h. Where the bequest is more than one person in excess of the valid one-third, the rule of rateable proportion applies in Sunni Law. In Shia Law, it is the rule of Chronological Priority that is applied to determine the distribution of the one-third property. Therefore a will in Muslim law is a divine disposition of property. The object of a will is twofold, firstly, it prevents a person from interfering and defeating the claims of his lawful heirs. So the restriction of the legal one-third ensures that at least two-thirds of the property must go by succession. Secondly, by permitting the testator to bequeath one-third of the property, he or she is empowered to settle just claims of even strangers or other relatives who are not heirs.

ACKNOWLEDGEMENT Concentration, dedication and application are necessary but they are not the only sufficient tools to achieve any goal. They need to be awarded by guidance, assistance and kind cooperation of some people to make it possible. Nothing concrete can be achieved without an optimal combination of inspiration and perspiration. No work can be accomplished without taking guidance from the right people. It is only the critiques of the ingenious intellectual that helps transform a product into a quality product. This work is a synergistic product of many minds. With great pleasure I express my gratitude to my project guide Prof. Ekta Gupta without her help this would not have been completed. She has given her precious suggestions and constructive guidance that has been indispensable in the completion of this project work.

REFERENCES  Aqil Ahmad, Mohammedan Law, 23rd Edition  Dr. Paras Diwan, Muslim law in Modern In...