Analyse the concept of Will in Islam and explain clearly the requirements of a valid Wasiyat and the means by which a Wasiyat can be revoked. Highlight the exceptions to the one-third rule of testamentary disposition of property among Muslims. Also, reveal the difference between the Shias and Sunni with respect to the Law of Wills.

Question: Analyse the concept of Will in Islam and explain clearly the requirements of a valid Wasiyat and the means by which a Wasiyat can be revoked. Highlight the exceptions to the one-third rule of testamentary disposition of property among Muslims. Also, reveal the difference between the Shias and Sunni with respect to the Law of Wills. [HJS 2013]

Find the question and answer of Muslim Law only on Legal Bites. [Analyse the concept of Will in Islam and explain clearly the requirements of a valid Wasiyat and the means by which a Wasiyat can be revoked. Highlight the exceptions to the one-third rule of testamentary disposition of property among Muslims. Also, reveal the difference between the Shias and Sunni with respect to the Law of Wills.]

Answer

As per Section 3 of Indian Succession Act,

"A Will 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."

Will has been declared legal by Quran.

Farman says,

"It is an instrument by which a person makes a disposition of his property to take effect after his demise and which is in its own nature ambulatory and revocable during his life."

Fatwa-i-Alamgiri defines a will to be

"a conferment of a right of property in a specific thing or in gratuity, to take effect on the death of the testator."

Thus, a Will denotes the last desire of a person for the distribution of his properties after his demise.

Conditions of a Valid Will

There are two conditions of a valid will.

1. There should be a distinct and express intention to give, and

2. The disposition must be intended by the testator to take effect after his death.

If these two conditions are established, then no particular form is necessary for a valid Will. Muslim Law does not prescribe any particular formality for a valid Will. The only requirement is that there must be a manifestation of the intention to transfer the ownership of some of his properties upon legatee without consideration. It may be Oral Will or in writing. The provision of Indian Succession Act does not apply to Muslims' Will.

If we talk about the legal validity of a Will under Muslim law, there are certain requisites which make a Will apt and capable of taking effect. Thus, the following discussed requirements must be satisfied:

a) The legator must be competent to make a Will.

b) The legatee must be capable of taking such endowment.

c) The property which is endowed by the legator must be a bequeathable property.

d) Free consent of the legator and the legatee.

e) The legator must possess testamentary rights over the property.

Revocation of Will

The basic feature of a Will is its revocability. The testator may revoke his Will at any time before his or her death either expressly or impliedly. The express revocation may be either oral or in writing. A will may be expressly revoked by tearing it off or by burning it. This revocation is possible till the testator breathes his last which is Marzul Maut (end at the death bed).

Similarly, a testator is lawfully empowered to make a subsequent will of the same property and the previous will would be revoked. The will can be revoked impliedly by the testator transferring or destroying completely altering the subject matter of the will or by giving the same property to someone else by another will.

In Abdul Karim v. Shiofiannisa, (1906) 33 Cal. 833, where the testator has disposed of the bequeathed property by way of alienation it will be presumed that the testator has revoked the bequest. A subsequent sale or gift of the property may also amount to revocation.

Therefore under Islamic Law, the following conditions can stand as revocation:

• sale of the bequeathed property
• gifting the property
• when the property is materially changed or altered by way of addition and the property cannot be delivered.

A testator may at any time, revokes his will. The revocation may be-

(i) expressed verbally, or

(ii) expressed in writing, or

(iii) implied i.e., by some act which shows an intention to revoke it. Some of the instances of implied revocation are -

(a) A bequest of a piece of land is revoked, if the testator subsequently builds a house.

(b) A bequest of the house is revoked if the testator sells it or makes a gift of it to another.

(c) It is complete after the nature of the property.

An exception to the one-third rule

Moreover, A Muslim cannot dispose of by Will more than one-third of the net assets after allowing for the debts and funeral expenses of the testator (under both Hanafi Law and Shia Law). Even for bequeathing the 1/3rd share, the Muslim has to obtain the consent of the other heirs.

There are two exceptions to the one-third rule:

a. When the testator does not have any heir. In such cases, if the restriction of permissible one-third is applied, then the beneficiary is the Government who will take the property by the doctrine of Escheat, while the primary purpose of applying the bequeathable permissibility to the extent of one-third is to protect the rights of the heirs, and not that of the Government. An heirless person can thus make a bequest of the total property.

b. Where the heirs themselves consent to the bequest in excess of one-third. As the chief objective is to safeguard their interests, the excess bequest can be validated by consent.

Differences between Shia and Sunni Law of Wills

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 one-third 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 or 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 the 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.

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