Explain fully the formalities of a 'Will'. Can a will once made be revoked? If so, under which circumstances?

Question: Explain fully the formalities of a 'Will'. Can a will once made be revoked? If so, under which circumstances? [BJS 1986]

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Answer

Muslim law requires no specific formalities for the creation of a will. It may be made in writing or orally or even by gestures.

Formalities of making a Will:

1. There are no specific formalities to make a Will. There's neither any layout nor any requirement laid down because it needs to be written.

2. If it is in writing then it need not be signed.

3. It does not require any attestation if attested then no need for registration.

4. Even the instructions of the testator on a blank paper would constitute a Will.

In Mazhar v. Bodha, 21 All 91, a letter written by a Muslim just before dying, made a Will, that directs the ratio of transactions of his property, which was later accepted as a valid will.

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.

Therefore there are two types of wills: Oral and Written. If a document possesses the characteristics of a will, the document is considered to be a complete will. In the case of an oral will, no specific number or class of witnesses is necessary for the validity of a will.

However, the following conditions need to be satisfied:

a. Legator's intention to make a will must be proved beyond doubt.

b. Terms of the will must be proved

c. Will must be proved with the greatest possible exactness.

On the other hand, in the case of a written will, there should be two witnesses to the declaration of the will. If the testator fails to mention the quantity or amount of bequeathed property, regard may be given to the number or quantity owned by the testator at the time of death.

The will is executed after payment of debts and funeral expenses. The majority view is that debts to Allah such as zakh and obligatory expiation should be paid whether mentioned in the will or not. However, there is a difference of opinion on this matter among Muslim jurists.

Revocation of Will by a Muslim 

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 Marz-ul-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 and subsequent sale or gift of the property may also amount to revocation. Therefore under Islamic Law, the following conditions can stand as revocation:

a) sale of the bequeathed property

b) gifting the property

c) when the property is materially changed or altered by way of addition and the property cannot be delivered

Mere denial by the testator as to the validity of a bequest will not be sufficient to revoke the will. A similar declaration will not amount to revocation either. Under Islamic Law, a bequest to a person is revoked by a bequest in a subsequent will of the same property to another. But a subsequent bequest, though it be of the same property to another person in the same will does not operate as a revocation of the prior request and the property will be divided between the two legatees in equal shares, as per the Hedaya.

Another important aspect of Revocation is the intention of the legator. It is important to show that a legato has intended to alter the will and the alteration in the deed, is a result of an altered intention in the interest of justice and good conscience.

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