'In Islam power of making Wills was grudgingly conceded'. Comment on the above statement and fully discuss the Juristic (legal) basis of Will' under Mohammedan Law.

Question:'In Islam power of making Wills was grudgingly conceded'. Comment on the above statement and fully discuss the Juristic (legal) basis of Will' under Mohammedan Law. [BJS 1978]

Find the question and answer of Muslim Law only on Legal Bites. ['In Islam power of making Wills was grudgingly conceded'. Comment on the above statement and fully discuss the Juristic (legal) basis of Will' under Mohammedan Law.]

Answer

In Muslim law, the testamentary document called the Will is referred to as Wasiyat. Will or Wasiyat is a document made by the legator in favour of the legatee which becomes effective after the death of the legator. Under Muslim law, no person is entitled to make a will of the whole property.

Limitations are imposed in making a will. The reason is to pay respect to the word of the prophet in order to ensure the shares of the legal heirs. In the case of a will of absolute property, nothing will remain for all sharers prescribed under Muslim Law. Wills are declared lawful in the Quran, though the Quran itself does not provide for the testamentary restriction of one-third.

The permissibility of bequests up to one-third is traced to a Hadis of the Prophet which has been stated by Sa'd Ibn Abi Waqqas and reported by Bukhari.

A will is essentially a legal declaration which signifies the intention of the testator (the maker of the will) with regard to the distribution of his or her property which takes effect after death. Till he or she is alive, the testator has full ownership and control over the property. A Will does not affect the power of the owner to transfer the property either inter-vivos or by any other testamentary disposition. It is not binding upon the testator in any manner, especially before his or her death.

When a Muslim dies there are four duties which need to be performed. These are:

1. Payment of funeral expenses

2. Payment of his/her debts

3. Execution of his/her will

4. Distribution of the remaining estate amongst the heirs according to Shariat.

When a person dies his/her property devolves upon his/her heirs. A person may die with or without a will (Testament). If he or she dies leaving a will, the property is distributed among his/her heirs according to the rules of Testamentary Succession. In other words, the property is distributed as per the contents of the testament or will. On the other hand, if a person dies leaving no testament (will), that is dies intestate, the rules of intestate Succession are applied for the distribution of the property among heirs.

Ameer Ali says,

"a will from the Mussalman point of view is a divine institution since its exercise is regulated by the Quran".

At the same time, the Prophet declared that the power should not be exercised to the injury of the lawful heirs.

Tyabji says that a will means

"the legal declaration of the intentions of a Muslim with respect to his property which he desires to be carried into effect after his death."

The ancient texts in Muhammedan law definitely dealt with Wills. The leading authority on the subject of Wills is the Hedaya which was composed by Sheikh Burhan Ud-din Ali. According to Hedaya,

"a will is the endowment with the property of anything after death".

A Will confers a right to property in a specific thing or in profit or advantage in the manner of a gratuity postponed till after the death of a testator.

The fundamental idea of a Will is that the testator should thereby dispose of his property or such part thereof as his personal law permits him to bequeath by Will.

Thus, the importance of the Islamic will is clear from the following two hadith:

1. Sahih al-Bukhari: "It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a Will about it."

2. Ahmad and Ibn Majah: "A man may do good deeds for seventy years but if he acts unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If (on the other hand), a man acts wickedly for seventy years but is just in his last will and testament, the goodness of his deed will be sealed upon him, and he will enter the Garden."

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