Define Wasiyat and the limit up to which a Muslim can bequeath his property. Discuss the requisites of a valid Wasiyat.

Question: Define Wasiyat and the limit up to which a Muslim can bequeath his property. Discuss the requisites of a valid Wasiyat. [BJS 2017]

Find the question and answer of Muslim Law only on Legal Bites. [Define Wasiyat and the limit up to which a Muslim can bequeath his property. Discuss the requisites of a valid Wasiyat.]

Answer

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 will which is made by the testator does not have any force until the death of the testator.

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."

Essentials of a valid Will

Under Mohammedan Law, every will made by the testator must satisfy the following conditions which are stated as under:

1. The person by whom the will is made also known as the testator must be competent to make it.

2. The legatee, or person in whose favour the will is made, must be competent to accept the bequest.

3. The bequest subject must be lawful.

4. The bequest cannot exceed the testator's powers, which is one-third of their estate.

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 the property which the testator wants to bequeath after his death must be capable of being transferred and the property must be owned by him. If he is not the property owner then a valid transfer cannot occur. 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.

Limitation on bequeath of Property

A Division Bench of Madras High Court reported in Noorunissa alias Pichamma v. Rahaman Bi and Others, [2001 (3) MLJ 141], observed as follows:

"(i)In Chapter XXIII of Mohammedan Law of Wills Second Edition 1965, by T.R.Gopalakrishnan, under the head "Limits of testamentary power in Mohammedan Law, it has been commented that the power of Mohammedan to dispose of by Will is circumscribed in two ways and the first limit is to the extent. A Mohammedan can validly bequeath only one-third of his net assets when there are heirs. This rule is based on a tradition of the prophet and the Courts in India have enforced the rule from early times. The object of the rule is to protect the rights of the heirs and where there is no heir and when all the heirs agree and give their consent the one-third limit may be exceeded. While the rule is that a Muslim can bequeath only one-third of his assets, a bequest in excess of one-third is rendered valid by consent of the heirs whose rights are infringed thereby or where there are no heirs at all.
(ii)Section 189 in Chapter XIII of Mohammedan Law deals with Bequest to heirs. A bequest to an heir is not valid except to the extent to which the persons who are heirs of the testator at the time of his death, expressly or impliedly consent to the bequest after his death."

It is evident from the abovesaid section of Mohammedan Law that while it permits the making of a Will to a limited extent in favour of a stranger or strangers, it does not allow undue preference to be given to a particular heir or heirs and bequest to such heir or heirs without the consent of the other heirs will be altogether invalid. It is also evident from Section 195 of the Mohammedan Law that the testator may revoke a bequest at any time either expressly or impliedly.

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