'A' dies leaving a Will in which he has left a legacy of Rs. 10,000/- to B. The Will is in the handwriting of A, but not signed by him, nor are there any witnesses attesting to the will. The heirs of 'A' challenged the Will. Can they succeed?

Question: 'A' dies leaving a Will in which he has left a legacy of Rs. 10,000/- to B. The Will is in the handwriting of A, but not signed by him, nor are there any witnesses attesting to the will. The heirs of 'A' challenged the Will. Can they succeed? [HJS 1999]

Find the question and answer of Muslim Law only on Legal Bites. ['A' dies leaving a Will in which he has left a legacy of Rs. 10,000/- to B. The Will is in the handwriting of A, but not signed by him, nor are there any witnesses attesting to the will. The heirs of 'A' challenged the Will. Can they succeed?]

Answer

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."

As a general rule, no formality is required for making a Will (Abdul Manan Khan v. Mirtuza Khan, AIR 1991 Pat 154).

No writing is necessary to make a Will valid, and no particular form, even verbal declaration is necessary so long as the intention of the testator is sufficiently ascertained.

Muslim law requires no specific formalities for the creation of a will. It may be made in writing or orally or even by gestures. It is necessary that the intention of the testator should be clear and unequivocal. In Islamic law, the will can be oral or written, and the intention of the testator must be clear that the will 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.

Thus, Muslim law does not expressly propound any specific formalities for the execution of the Will. The intention of the legator plays a crucial role in validating a Will. The intention must be explicit, clear and unequivocal in nature.

A Will can be made either orally or in writing or even by gestures.

Oral Will

A simple oral declaration is also considered a valid Will. It is not abiding to follow any particular process or formality in order to constitute a Will. A mere oral declaration is enough. But the burden to corroborate such Will is very hefty. Eventually, an oral Will has to be proved with extreme fidelity with precision in date, time and place.

Written Will

For a Will to be declared in writing, no specific form is described. A Will is valid even if it is not signed by the legator or attested by the witnesses. The name of the document is immaterial. If it possesses the essential characteristics of a Will, then it will be treated as a valid Will.

On the other hand, in the case of a written will, there should be two witnesses to the declaration of the will. However, it was held in Ramjilal v. Ahmed, AIR 1952 MP 56, that though the will is in writing, it need not be signed by the testator and attested by the witnesses.

In the present case at hand, A' dies leaving a handwritten and unsigned Will in which he has left a legacy of Rs. 10,000/- to B.  The Will was not attested by any witnesses attesting but that is immaterial to challenge the validity of a will when the intention of the Legator is very much clear. Thus, the heirs of 'A' cannot challenge the Will.

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