Write notes on any two of the following: [BJS 2014] 1. Basic requirements of a Will. 2. Bequeathable third. 3. Maraz-ul-maut.

Question: Write notes on any two of the following: [BJS 2014]

1. Basic requirements of a Will.

2. Bequeathable third.

3. Maraz-ul-maut.

Find the question and answer of Muslim Law only on Legal Bites. [Write notes on any two of the following: [BJS 2014] 1. Basic requirements of a Will. 2. Bequeathable third. 3. Maraz-ul-maut]

Answer

1. Basic Requirements of a Will

A Will or Testament or Wasiyat has been defined as

"an instrument by which a person makes disposition of his property to take effect after his death."

Tyabji defines Will as

"conferment of 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."

The distinguishing feature of a Will is that it becomes effective after the death of the testator and it is revocable.

Unlike any other disposition (e.g. sale or gift), the testator exercises full control over the property bequeathed till he is alive: the legatee or beneficiary under the Will cannot interfere in any manner whatsoever in the legator's power of enjoyment of the property including its disposal or transfer (in that case the Will becomes revoked).

The object of Wills according to the tradition of the Prophet is to provide for the maintenance of members of the family and other relatives where they cannot be properly provided for by the law of inheritance. At the same time, the prophet has declared that the power should not be exercised to the injury of the lawful heirs.

Requisites of a Valid Will:

• The testator (legator) must be competent to make the Will.
  
• The legatee (testatrix) must be competent to take the legacy or bequest.
• The subject (property) of the bequest must be a valid one.
• The bequest must be within the limits imposed on the testamentary power of a Muslim.

i) Testator and his Competence (Who can make Will)

Every major Muslim (above 18 years) of sound mind can make a Will. The age of majority is governed by the Indian Majority Act, of 1875, under which, a person attains majority on completion of 18 years (or on completion of 21 years, if he is under the supervision of Courts of Wards).

Thus, the testator must be of 18 or 21 years, as the case may he, at the time of execution of the Will. At the time of execution of a Will (i.e. when it is being made), the testator must be of sound mind.

Under Muslim law, the legator must have a perfectly 'disposing mind' i.e. the legator must be capable of knowing fully the legal consequences of his activities not only for a brief period when the declaration was made but much after that.

A Will that is executed in the apprehension of death is valid, but under Shia law, if a person executes any Will after attempting to commit suicide, the Will is void.

A minor is incompetent to make a Will (such a Will is void) but a Will made by a minor may subsequently be validated by his ratification on attaining a majority.

ii) Legatee and his Competence (To whom Will can be made)

Any person capable of holding property (Muslim, non-Muslim, insane, minor, a child in its mother's womb, etc.) may be the legatee under a Will. Thus, sex, age, creed or religion is no bar to the taking of a bequest.

Legatee (including a child in its mother's womb) must be in existence at the time of the making of the Will. Thus, a bequest to a person's unborn person is void.

A bequest may be validly made for the benefit of a 'juristic person' or an institution (but it should not be an institution that promotes a religion other than the Muslim religion viz. Hindu temple, Christian church etc.)

A bequest for the benefit of a religious or charitable object is valid. It is unlawful to make a bequest to benefit an object opposed to Islam e.g. to an idol in a Hindu temple because idol worship is opposed to Islam.

No one can be made the beneficial owner of shares against his will. Therefore, the title to the subject of the bequest can only be completed with the express or implied consent of the legatee after the death of the testator. The legatee has the right to disclaim.

A person who has caused the death of the legator cannot be a competent legatee. A Will operates only after the death of a legator, therefore, a greedy and impatient legatee may cause the legator's death to get properties immediately. However, it is also immaterial whether the legatee knew about him being a beneficiary under the Will or not.

iii) Subject Matter of Will (Bequeathable Property) and its Validity

The testator must be the owner of the property to be disposed of by will; the property must be capable of being transferred; and, the property must be in existence at the time of the testator's death, it is not necessary that it should be in existence at the time of the making of Will.

Any kind of property, movable or immovable, corporeal or incorporeal, may be the subject matter of a Will. In order to be a valid bequest the grant in the bequeathed property must be complete or absolute. A bequest has to be unconditional. If any condition is attached, say the legatee shall not alienate the subject of legacy, the condition is void and the bequest is effective without condition. Likewise, a bequest in futuro is void, and so does a contingent bequest.

However, an alternative bequest of property (i.e. to one or failing him to the other person) is valid. Thus, when the testator willed that his son if existing at the time of his death will take the bequest, if not in existence his son's son will, and failing both it will go to a charity, was held valid.

iv) Testamentary Power and its Limits (Bequeathable one-Third)

A Muslim does not possess unlimited power of making disposition by Will. There are two-fold restrictions on the power of a Muslim to dispose of his property by Will, which are in respect of the person in whose favour the bequest is made, and as to the extent to which he can dispose of his property.

No Muslim can make a bequest of more than one-third of his net assets after payment of funeral charges and debts. If the bequeathed property exceeds one-third, the consent of other heirs is essential (Sunni and Shia laws). A bequest of the entire property to one heir to the exclusion of other heirs is void. This is obvious because the object behind this restriction is to protect the interests of the testator's heirs.

2. Bequeathable third

A Muslim does not possess unlimited power of making disposition by Will. No Muslim can make a bequest of more than one-third of his net assets after payment of funeral charges and debts. If the bequeathed property exceeds one-third, the consent of other heirs is essential in both Sunni and Shia laws.

Where the heirs refuse to give their consent, the bequest would be valid only to the extent of one-third of the property and the rest of the two-thirds would go by intestate succession.

In respect of the bequest of one-third to an heir, the consent of other heirs is required in Sunni law, but not in Shia law. In the case of a non-heir (stranger) the consent of heirs is not required in both.

The above rule of bequeathable one-third will not apply to a case where the testator has no heir. The right of the Government to take the estate of an heirless person will not, in any way, restrict the right of a person to make a disposition of his property as he likes. Thus Government is no heir to an heirless person.

A bequest made for pious purposes is valid to the extent of one-third of the property, both under Sunni as well as Shia law.

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.

In a Division Bench decision of this Court reported in Sulaika Bivi and six others v. Rameeza Bivi, 2000 (IV) CTC 454, it was held that

"The consent of the heirs can validate a testamentary disposition of the property in excess of one-third of the property of the testator if the consent is given after the death of the testator. But if the consent is given during the lifetime of the testator, it will not render valid alienation, for it is an assent given before the establishment of their own rights".

In Damodar Kasinath Rasane v. Smt. Shahajadibi and others, AIR 1989 Bom in para 11, the Division Bench concluded that.

"A Muslim cannot bequeath more than one-third of this property whether in favour of a stranger or his heir when there are heirs or other heirs left by him as the case may be. However, when, there are no heirs or other heirs left by him, he can dispose of his entire property in favour of the stranger or the sole heir as against the right of the State to take by escheat. If the property bequeathed is in excess of One-third of the estate, the excessive bequest is not valid unless the heirs, or other heirs (if the bequest is in favour of one or some of the heirs) give their consent."

Their Lordships also held that "under the Hanafi law, the consent has to be given after the death of the testator, whereas under the other schools of law, it can be given either before or after the death of the testator."

It is also held therein that

"The estate bequeathed in excess of the bequeathable third will be valid to the extent of the share of the heir or heirs consenting to such excess"

It is further stated that where there are more bequests than one, which together exceed one-third of the estate, the bequests get reduced rateably. The Division Bench was also pleased to hold that where only some of the heirs' consent, it is valid only to the extent of the share of the consenting heir or heirs.

Maraz-ul-maut

Under Mohammedan Law gift made during marz-ul-maut (death-bed illness) is subject to very strict scrutiny for its validity. Marz-ul-maut is a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death.

There are three tests laid down in Rashid Karmalli and Anr. v. sherbanoo, [1907] 31 ILR Bom 264, to determine whether an illness is to be regarded as marz-ul-maut. They are:

(1) Proximate danger of death so that there is a preponderance of Khauf or apprehension that at the given time death must be more probable than life.

(2) There must be some degree of subjective apprehension of death in the mind of the sick person.

(3) There must be external indicia chief among which would be the inability to attend to ordinary avocations.

The gift made during marz-ul-maut is subject to all other conditions necessary for the validity of a hiba or gift, including delivery of possession by the donor to the donee.

Syed Ameer Ali in his book on "Mohammedan Law" throws some more light on the principles of the `gift of the sick'. It is stated: "In the chapter in the "Fatawai Alamgiri" dealing with "the gift of the sick" the principles are set forth at some length. In the first place it is stated from the Asal that neither a gift nor a sadakah by a mariz a person suffering from marz-ul-maut of which the definition is given later on is effective without possession: and if possession is taken, it is valid in respect of a third. If the donor were to die before delivery (taslim) the whole disposition would be invalid.

It is, therefore, necessary to understand that a gift by a mariz is a contract and not a wasiat, and the right of disposition is restricted to a third on account of the right of the heirs which attaches to the property of the mariz. And as it is an act of bounty it is effective so far only as the law allows and that is a third. And being a contractual disposition it is subject to the conditions relating to gifts, among them the taking of possession by the donee before the death f the donor."

The only limitation under Mohammedan Law is that the disposition is restricted to a third on account of the right of the heirs. Marz-ul-maut gift cannot, therefore, take effect beyond a third of the estate of the donor after payment of funeral expenses and debt unless heirs give their consent after the death of the donor, to the excess taking effect.

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