Define 'Will' and explain the principles of abatement of legacies.

Question: Define 'Will' and explain the principles of abatement of legacies. [HJS 1999]

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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 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 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."

Principles of Abatement of Legacies

A Muslim testator can make a will of only one-third of his property without the consent of his or her heirs. If the bequest is in excess, and the heirs refuse to give their consent, the totality of the will does not become operative or invalid but abates rateably and is valid to the extent of one-third of the property, as has been stated in the Hedaya.

In Damodar Kashinath Rasane v. Shahzadi Bi, AIR 1989 Bom 1, the Bombay High Court stated that a Muslim cannot bequeath more than one-third of his property whether in favour of an heir or a stranger.

The rule of Abatement is different in Sunni Law and in Shia Law.

I) In Sunni Law, the general rule is that a bequest in excess of one-third of the estate of the deceased would take effect with respect to one-third with the excess going by inheritance. Where there are more than one legatee and the property given to them exceeds one-third, the shares of each of the legatees would be reduced proportionally. This is called the Rule of Rateable Proportion.

The following principles are applied:

a. The property disposed of by will, must first abate equally and rateably.

b. The proportionate part of each bequest which is for a secular purpose must be allotted to it

c. The proportionate parts so abated of bequests for pious purposes must be aggregated and the aggregate distributed so that the priority will be given to the extent of the full bequest. In such cases the following rules are applied:

• The Quranic rules will be given first preference. The Quranic heirs will have precedence over other bequests for pious purposes.
• The property will be applied for certain works which are necessary.
• The property will be applied for voluntary purposes.

There is an exception to the above rule. Where the legator has left only his or her spouse, and apart from the spouse there is no other heir, the above rule of only making one-third of the property may become inapplicable. In such cases, the spouse shall take the whole property. The rule of bequeathable third shall have no application if no heir has survived the legator.

If a Muslim bequest more than one-third of the property and the heirs does not consent to the same, the shares are reduced proportionately to bring it down to one-third. Bequests for pious purposes have no precedence over secular purposes and are decreased proportionately.

II) Under Shia Law, the principle of rate-able abatement is not applicable and the bequests made prior to the date take priority over those later in the date. But if the bequest is made by the same will, the latter bequest would be a revocation of an earlier bequest. This is called the Rule of Chronological Priority. The legatee whose name appears first in the Will is to be given his or her share, followed by the second legatee and then the third and so on. The moment the bequeathable one-third is exhausted full effect has been given to the Will. Any other legatee whose name follows after one-third of the assets has been distributed will not receive anything.

The rule of chronological priority is not applicable in cases where under one legacy two or more persons have been an exact one-third of the total assets. In such cases, the legatee whose name appears last gets the one-third given to him under the Will, and the legatees whose names appear prior to him will not get anything.

For example, A testator dies behind leaving assets worth Rs.1,20,000. He leaves a will under which he leaves Rs.20,000 to A, Rs. 30,000 to B and Rs. 40,000 to C. As the total assets of the testator are to the tune of Rs.1,20,000, the bequeathable one-third of that amount would be Rs. 40,000. Following the rule of Chronological Priority, as A's name appears first, he will be given Rs. 20,000. The rest of the Rs. 20,000 of the one-third will be given to B. C will not get anything as the one-third (Rs. 40,000) is exhausted.

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