Rahim bequeaths orally half of his property to a school and another half by a registered deed to his wife. After his death, his children wish to avoid both Wills. Advise them as to the provisions of Muslim Law (Shia and Sunni) under which the validity of the Wills can be challenged.

Question: Rahim bequeaths orally half of his property to a school and another half by a registered deed to his wife. After his death, his children wish to avoid both Wills. Advise them as to the provisions of Muslim Law (Shia and Sunni) under which the validity of the Wills can be challenged. [Punj JS 1999]

Find the question and answer of Muslim Law only on Legal Bites. [Rahim bequeaths orally half of his property to a school and another half by a registered deed to his wife. After his death, his children wish to avoid both Wills. Advise them as to the provisions of Muslim Law (Shia and Sunni) under which the validity of the Wills can be challenged.]

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. The will is executed after payment of funeral expenses and any outstanding debts. The one who makes a will (wasiyya) is called a testator (al-musi). The one on whose behalf a will is made is generally referred to as a legatee (al-musa lahu).

Under Muslim law, no person is entitled to make a will of the whole property. Limitations are imposed in making the will. The reason is to pay respect to the word of the prophet in order to ensure the shares of the legal heirs.

A bequest to an heir is not valid unless the other heirs also consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share. A bequest to an heir, either in whole or in part, is invalid, unless consented to by other heir or heirs and whosoever consents, the bequest is valid to that extent only and binds his or her share. Neither inaction nor silence can be the basis of implied consent.

For a will to be valid, the following conditions are to be satisfied:

a. Capacity/Competence of Testator;

b. Competence of Legatee;

c. Subject Matter:

d. Testamentary Capacity.

1. Capacity of Testator:-

According to Muslim Law, a testator or legator has to fulfill the following conditions:

• age of majority,
• validity of gifts made by guardians,
• validity of a person who has attempted suicide and
• The soundness of mind.

According to Muslim Law, the age of the Majority is 15 years, but it is not applicable to wills in India. It may be noted that under Shia law, the age of majority is not a condition precedent for making a will. Tyabji states that "the Shiite Law of wills must be deemed to be unaffected by the Indian Majority Act which defines the age of majority as 18 or 21 and only questions related to marriage, divorce, adoption, and religious usages are exempt from this". A Shiite who is ten years old is thus exempt from the Act and has discretion and is competent to create a will. It has however been held that this view cannot be accepted.

There is no express provision in the Act that excludes the operation of law for Shia Muslims. The Shafi School of Sunni Law has prescribed certain conditions:

a. A person who is capable of duties can make a valid will

b. A person who is under inhibition on account of insanity cannot make a will

c. A person who is not in his senses cannot make a will

d. A will be made by a child is also not valid. However, there is a difference in opinion among Muslim Law Scholars. However, under Muslim law, a will cannot be made by the guardian on behalf of the minor or insane person and it will be treated as void. A will made by a person when he was a minor but after attaining a majority he ratified the same will be treated as valid.

Under Shia Law, a will made after the testator was injured by his own actions or tried to commit suicide, such a will is declared invalid.

2. Competence of Legatee:-

Any person having the capacity to hold the property can be a legatee. The Legatee may be a Muslim or a Non-Muslim who is not hostile towards Islam, a man or woman, a major or a minor, or even a child in the womb provided the child is born within 6 months of the death of the testator. A person who renounces Islam cannot be a competent legatee.

Where a legatee under a will is responsible for the murder or causing death to the testator, the will made in his or her favour will be invalid under Sunni Law. It is irrespective of whether the murder was caused accidentally or intentionally. It is also immaterial if he knew about being a beneficiary in the will. Under Shia Law, the legatee will be incompetent to receive the benefits if the murder was caused only intentionally. The time of making the will is of no consequence.

The legatee must be capable of owning the bequest. Any bequest made in favour of any legal heir already entitled to a share is invalid under traditional Sunni Muslim law unless consent has been given by other legal heirs. An acknowledgment of debt in favour of a legal heir is valid.

3. Subject matter:-

A Muslim can bequeath any property movable or immovable, corporeal or incorporeal, which must be in existence and transferable at the time of the testator's death. Therefore it is not necessary that the subject matter of the will must exist at the time of making the will but it must exist when the will becomes operative that is at the time of the death of the testator.

4. Testamentary Capacity:-

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). The remaining 2/3 share should be made available for distribution amongst the heirs. Even for bequeathing the 1/3rd share, the Muslim has to obtain the consent of the other heirs. Thus, the testamentary capacity of a Muslim is cut down by two principal limitations:

a. as to quantum where he cannot bequeath more than one-third of his net estate

b. as to the legatees where he cannot bequeath to his own heirs.

Importance of the consent

Under Sunni Islamic law the power of the testator is limited in two ways: firstly, he or she cannot bequest more than 1/3 of the totally property unless the other heirs consent to the bequest or there are no legal heirs at all or only legal heir is the spouse who gets his/her legal share and the residue can be bequeathed and secondly, the testator cannot make a bequest in favour of a legal heir under traditional Sunni Muslim law. Here consent must be given at the time of the operation of the Will, that is, after the testator's death.

Under Shia Law, the bequest in favour of an heir is valid without the consent of other heirs provided it does not exceed the bequeathable one-third limit. If it is in excess of one-third, then the consent of those heirs is necessary whose share is likely to be affected by the bequest.

Therefore, in the present case at hand, in which Rahim bequeaths orally half of his property to a school and another half by a registered deed to his wife. So, if the children of Rahim who are his heir if they do not agree with the aforesaid bequeath because it is exceeding than one-third of the share, such bequeath of will can be avoided by the children who wish to avoid both Wills

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