This article has been written by Sameera Khan from Amity Law School, Noida

INTRODUCTION

The article encompasses the legal concept of wills, their nature, scope, execution, revocation, legacy facilitation, registration, consent significance, and validity, which hold significant importance.

Within Muslim law, the testamentary instrument known as a will is denoted as Wasiyat. A will, or Wasiyat, constitutes a legal document crafted by the testator in favor of the beneficiary, which takes effect posthumously. According to Muslim law, individuals are not permitted to devise their entire estate via a will, as constraints are imposed to honor the Prophet’s teachings and ensure the rightful entitlements of legal heirs. If a will were to encompass the entirety of an estate, no portion would remain for the prescribed heirs under Muslim Law. While the Quran acknowledges the legitimacy of wills, it does not specifically mandate the one-third testamentary restriction. The allowance for bequests up to one-third originates from a Hadith of the Prophet, relayed by Saad Ibn Abi Waqqas and documented by Bukhari.

CONCEPT OF WILL

When a Muslim passes away, there are four essential responsibilities that must be fulfilled:

1. Covering funeral expenses

2. Settling any outstanding debts

3. Carrying out the provisions of their will

4. Distributing the remaining estate among the heirs in accordance with Sharia law.

The Islamic term for a will is al-wasiyya. This type of will takes effect only after the death of the person who created it. The will is enacted after the payment of funeral costs and the settlement of any debts. The person who creates the will is known as the testator (al-musi), while the individual or individuals designated to benefit from the will are referred to as legatees (al-musa lahu).

Key terms to understand in the context of Islamic wills include:

– Testator: The individual who creates the will.

– Legatee: The person or persons who are designated to receive benefits from the will.

– Legacy:- The subject matter of the will. It is the property to be distributed among the heirs.

– Executor:- The testator, while executing the will, may appoint a person to execute the will following its contents (after his death). In the absence of the appointment of an Executor by the testator, the Court may appoint a person called ‘Administrator’ to execute the will.

The fundamental idea of a will is that the testator should thereby dispose of his property or such part thereof as his law permits him to bequeath by Will. Under pure Islamic Law, a will is intended to ensure that, following the testator’s death, specific actions are carried out. This might include assigning a portion of their property to someone, transferring ownership of their assets to another person, using the property for charitable causes, or appointing a guardian for their children and dependents..^[1]

NATURE AND SCOPE

The testamentary document, or will, allows the testator to extend assistance to individuals who may not be entitled to inherit from them, such as orphaned grandchildren or widows of different faiths, like Christians. Moreover, the will serves various purposes like clarifying the nature of joint accounts, appointing guardians for children, and providing instructions or admonishments. In jurisdictions where intestate succession laws diverge from Islamic law, drafting a will becomes essential. An Islamic will typically comprises bequests, instructions, and assignments of rights, and it can be made orally or in writing without any specific wording requirements. In Islamic law, the intention of the testator is paramount, whether expressed orally, in writing, or through gestures, to indicate that the will is to be executed after their demise. Therefore, there are two main types of wills: oral and written. For an oral will, no specific number or class of witnesses is mandated for its validity, while a written will, if possessing the essential characteristics, is considered complete.

The following conditions must be met for a will to be valid under Islamic Law^[2]:

a. The intention of the testator to create a will must be unequivocally established.

b. The specific terms of the will must be clearly demonstrated.

c. The will must be verified with utmost accuracy.

For a written will, it is required that two witnesses attest to the declaration. If the testator does not specify the quantity or amount of the property bequeathed, consideration should be given to the amount of property the testator owned at the time of death. The execution of the will occurs after settling debts and funeral expenses. The prevailing opinion is that debts owed to Allah, such as zakat and obligatory expiation, should be paid regardless of whether they are mentioned in the will, though there is some disagreement among Muslim jurists on this issue.

Generally, no formalities are required for making a will, as established in the case of Abdul Manan Khan v. Mirtuza Khan^[3]. A written document is not necessary for the validity of a will, nor is a specific form required. Even a verbal declaration is sufficient, provided the testator’s intent is clearly determined.

CONDITIONS FOR A VALID WILL

Competence of Testator

Per Muslim Law, a testator or legator must meet certain requirements, including reaching the age of majority, the validity of gifts made by guardians, the status of a person who has attempted suicide, and mental capacity. In Muslim Law, the age of majority is typically considered to be 15 years, but this criterion does not apply to wills in India. It’s worth noting that under Shia law, reaching the age of majority is not a prerequisite for making a will.

The Shafi’i School of Sunni Law outlines specific conditions for making a valid will:

a. Only individuals who are capable of fulfilling duties can create a valid will.

b. Those who are inhibited due to insanity are not eligible to make a will.

c. Individuals who are not in a sound state of mind cannot make a will.

d. A will made by a child is considered invalid.

There is some disagreement among Muslim Law scholars. According to Muslim law, a guardian cannot create a will on behalf of a minor or an insane person; such a will is considered void. However, if a person makes a will while they are a minor and later ratifies it upon reaching adulthood, it is deemed valid. Under Shia Law, a will made by a testator who has injured themselves or attempted suicide is considered invalid.

In the case of Mazhar Hussain v. Bodha Bibi^[4], it was ruled that a will made in contemplation of taking poison is valid if it was created before the poison was actually consumed. The burden of proof lies with the party challenging the will to demonstrate that it was written afterward.

Competence of Legatee

Any individual with the capacity to own property can be named as a legatee. The legatee can be of any religion, provided they are not antagonistic towards Islam, regardless of gender, age, or even if they are unborn at the time of the testator’s death but are born within six months thereafter. However, a person who has renounced Islam cannot be considered a competent legatee. Similarly, institutions can also be valid legatees as long as they do not oppose Islam or promote anti-Islamic activities. For instance, a will favoring a Hindu temple or a society advocating a different religion would not be considered valid. However, institutions focused on education and self-reliance are permissible as long as they do not contradict Islamic principles.

Under Sunni Law, if a legatee is found responsible for the murder of the testator, whether intentionally or accidentally, any will made in their favor becomes invalid, regardless of whether they were aware of their status as a beneficiary. Conversely, under Shia Law, the legatee would be disqualified from receiving benefits only if the murder was intentional, with no regard to the timing of the will’s creation. The legatee must also be legally capable of receiving the bequest.

Any bequest made to a legal heir entitled to a share under traditional Sunni Muslim law is considered invalid unless consent is obtained from other legal heirs. However, an acknowledgment of debt in favor of a legal heir remains valid. The acceptance or rejection of a bequest by the legatee becomes relevant only after the testator’s death, and once a decision is made, it cannot be reversed. In cases where the testator has bequeathed property jointly to several individuals, the property is divided equally among the legatees. According to Hanafi law, surviving legatees will inherit the property if they outlive the testator. If a legatee predeceases the testator, the surviving legatees collectively receive the entire bequest. If the testator specifies that a legatee is entitled to only a specific portion of the bequest, the legatee will inherit that designated portion of the property.

Subject Matter

A Muslim can bequeath any property, whether movable or immovable, tangible or intangible, as long as it is in existence and transferable at the time of the testator’s death. Therefore, the property does not need to be in existence when the will is made, but it must exist when the will takes effect upon the testator’s death.

Testamentary Capacity

A Muslim is restricted from bequeathing more than one-third of their net assets through a will, after accounting for debts and funeral expenses, according to both Hanafi and Shia Law. The remaining two-thirds must be available for distribution among the heirs. Additionally, to bequeath the one-third share, the testator must obtain the consent of the other heirs. Thus, a Muslim’s testamentary capacity is limited by two main restrictions^[5]:

a. In terms of quantity, as they cannot bequeath more than one-third of their net estate.

b. In terms of beneficiaries, as they cannot bequeath to their heirs.

Significance

Under Sunni Islamic law, the authority of the testator is restricted in two significant ways. a.the testator is prohibited from bequeathing more than one-third of their total property unless consent is obtained from the other heirs, or if there are no legal heirs, or if the sole legal heir is the spouse who receives their rightful share and the remainder can be bequeathed.

b. the testator is not permitted to make a bequest in favor of a legal heir according to traditional Sunni Muslim law. In this case, consent must be given at the time the will is executed, which occurs after the testator’s death.

Exceptions

a. When the testator has no heirs. In this scenario, applying the one-third restriction would result in the government acquiring the property through the doctrine of escheat. Since the main purpose of the one-third limitation is to protect the rights of the heirs and not the government, an heirless individual can bequeath their entire estate.

b. When the heirs consent to a bequest exceeding one-third. Since the primary goal is to protect the interests of the heirs, any excess bequest can be validated with their consent.

According to Shia Law, a bequest to an heir is valid without needing the consent of other heirs, as long as it does not exceed the allowable one-third of the estate. However, if the bequest surpasses this limit, consent from those heirs whose shares may be affected is necessary. For consent to be valid, the consenting heirs must be of legal age, mentally sound, and not insolvent. This consent can be expressed, implied, oral, written, or inferred from their actions. Mere silence or presence during the execution of the will is not considered consent. If a will is written and attested by the testator’s heirs, it serves as evidence of their consent.

In Shia Law, consent from heirs whose shares are affected can be given either before or after the testator’s death, whereas under Sunni Law, it must be given after the testator’s demise. Once consent is given, it cannot be revoked, and the heirs are bound by it. Similarly, consent cannot be given after an heir has previously rejected it. The validity of a legacy in favor of an heir can be established by obtaining consent from one or some of the heirs or all of them collectively. If all heirs consent, the legacy is valid for the shares of all. If only some heirs consent, the legacy is valid only for their respective shares.

In the case of Gulam Mohammed v Gulam Hussain^[6] ,the Privy Council ruled that a bequest made in favor of heirs is invalid if it lacks the consent of the other heirs.

Abatement

According to Islamic law, a Muslim testator is permitted to allocate only up to one-third of their property through a will without requiring the consent of their heirs. If the bequest exceeds this limit and the heirs decline to provide consent, the entire will does not become void or invalid; instead, it proportionately diminishes, remaining valid only to the extent of one-third of the property, as outlined in the Hedaya.

In Damodar Kashinath Rasane v Shahzadi^[7], the Bombay High Court stated that a Muslim cannot bequeath more than one-third of his property whether in favor of an heir or a stranger.

The rule of abatement differs between Sunni Law and Shia Law.

I) In Sunni Law, the general rule is that a bequest exceeding one-third of the deceased’s estate is only effective up to the one-third limit, with the excess going to the heirs by inheritance. When there are multiple legatees and the bequeathed property exceeds one-third, each legatee’s share is proportionally reduced, known as the Rule of Rateable Proportion.

The following principles are applied:

a. Property distributed by will must first be proportionately reduced.

b. Bequests for secular purposes must be allocated appropriately.

c. Proportional parts of bequests for religious purposes must be combined and distributed, prioritizing full bequests.

In such cases, these rules are followed:

– Quranic rules take precedence.

– Quranic heirs have priority over other religious bequests.

– The property is used for specified necessary purposes.

– The property can be applied to voluntary purposes.

There is an exception to this rule: if the legator leaves only a spouse and no other heirs, the spouse inherits the entire property, and the one-third rule does not apply. If a Muslim bequeaths more than one-third of the property without heir consent, shares are reduced proportionally to fit within the one-third limit. Bequests for pious purposes do not take precedence over secular purposes and are also proportionally decreased.

Bequests for pious purposes are classified into three categories:

a. Bequests for faraiz, purposes expressly ordained in the Quran, such as hajj, zakat, and expiation for missed prayers.

b. Bequests for wajib, purposes not explicitly ordained but proper, such as charity for breaking fasts.

c. Bequests for nawafil, purposes deemed pious by the testator, such as building a mosque or aiding the poor. Bequests in the first category take precedence over those in the second and third categories, and those in the second category take precedence over the third.

II) In Shia Law, the principle of rateable abatement does not apply. Instead, bequests made earlier take priority over those made later. If bequests are made in the same will, a later bequest revokes an earlier one, following the Rule of Chronological Priority. The legatee listed first in the will receives their share first, followed by the second legatee, and so on, until the one-third limit is reached. Any legatee named after the one-third limit is exhausted receives nothing. However, if a single legacy divides exactly one-third of the assets among multiple legatees, the legatee named last receives their share, and those named earlier receive nothing.

Registration of Wills

Although registering a will is not mandatory, it is recognized by the legal system, especially in cases where the execution of a will is disputed or involves an unregistered will. Sections 40 and 41 of the Indian Registration Act provide the guidelines for registering a will. After the testator’s death, or by any person claiming as executor or otherwise under the will, it can be presented to any Registrar or Sub Registrar for registration at any time, as there is no specified time limit. A will presented by the testator for registration can be registered in the same manner as any other document.

A will presented for registration by another entitled person will be registered if the registering officer is satisfied:

a. that the will or authority was executed by the testator;

b. that the testator is deceased; and

c. that the person presenting the will is entitled to do so.

The registration of a will does not prove the testamentary capacity of the testator, as the Registrar is not required to inquire into the testator’s capacity unless the testator appears to be a minor, an idiot, or a lunatic.

The Executor of the Will (Al-wasi Al-mukhtar)

The executor, known as al-wasi in Islamic law, is appointed by the testator to manage the estate. The executor’s responsibilities include fulfilling the testator’s wishes according to Islamic law and protecting the interests of the children and the estate. The executor’s authority should be clearly defined. Under Hanafi law, the executor must be trustworthy and truthful, while Shia law requires the executor to be just. In Hanafi law, the appointment of a non-Muslim executor is valid. The testator can appoint multiple executors, regardless of gender, and specify whether each executor can act independently. Once an individual begins acting as an executor, they are considered to have accepted the appointment under both Islamic and English law.

Revocation of Wills

A will’s fundamental characteristic is its revocability, allowing the testator to revoke it at any time before their death, either explicitly or implicitly. Explicit revocation can occur through oral or written means, such as tearing up or burning the will, and remains possible until the testator’s last breath, known as Marzul Maut. The testator can also create a new will for the same property, thereby revoking the previous one. Implicit revocation can occur if the testator transfers, destroys, or significantly alters the subject matter of the will or gifts the same property to someone else through another will. If the bequeathed property is alienated, it is presumed that the bequest has been revoked. Similarly, a subsequent sale or gift of the property constitutes revocation.

Under Islamic Law, the following conditions can revoke a will:

a. Sale of the bequeathed property.

b. Gifting the property.

c. Material alteration or addition to the property, rendering it undeliverable.

Merely denying the validity of a bequest or making a similar declaration is insufficient to revoke a will. According to Islamic Law, a bequest to one person is revoked by a subsequent will’s bequest of the same property to another. However, a subsequent bequest of the same property to another person in the same will does not revoke the prior bequest; instead, the property is divided equally between the two legatees, as per the Hedaya.

Another important aspect of revocation is the intention of the legator. It is crucial to demonstrate that the legator intended to alter the will and that the alteration in the deed reflects this changed intention in the interest of justice and good conscience.

CONCLUSION

A Muslim will should primarily be interpreted according to the principles outlined in Muhammadan Law, taking into account the prevailing social conditions, language used, and surrounding circumstances. Similar to modern legal principles, a will is considered effective from the death of the testator. In cases of ambiguity, the court should strive to uphold the testator’s intention as much as possible. Additionally, heirs may be consulted for their interpretation. It’s crucial to consider the distinctions between Sunni Law and Shia Law when determining the rules for interpreting wills.

Thus summarising the differences:

a.In Sunni Law, any bequest to an heir, even up to one-third of the testator’s entire property, is considered invalid. However, in Shia Law, such bequests to heirs are valid up to one-third of the property.

b. In Sunni Law, the consent of heirs must be provided following the death of the testator, whereas in Shia Law, such consent may be given either before or after the testator’s demise.

c. The bequest in favour of a child in the womb of his mother is valid provided he or she is born within six months of making a will in Sunni Law but it is up to ten months under Shia Law^[8].

d. In Sunni Law, a will made by a testator who later commits suicide is considered valid. However, in Shia Law, such a will is invalid unless it was created before the testator took any steps toward committing the act of suicide.

e. The Legacy has to be accepted after the death of the testator in Sunni Law. Legacy under Shia Law can be accepted before or after the testator’s death.

F. Legatee who causes the death of the testator cannot take his property under Sunni Law. Under Shia Law, if the death of the testator was caused by the legatee accidentally, then the property can be taken but not otherwise.

g. In Sunni Law, if the legatee dies before the testator, the legacy lapses. In Shia Law, the legacy only lapses if the legatee dies without leaving an heir or if the testator revokes the will. If the legatee has an heir and the will is not revoked, the legacy passes to the heir.

h. When a bequest involves more than one person and exceeds the valid one-third, Sunni Law applies the rule of rateable proportion. In contrast, Shia Law follows the rule of Chronological Priority to determine the distribution of the one-third portion of the property.

Hence, a will in Muslim law is regarded as a divine arrangement concerning property. The purpose of a will serves two main objectives: firstly, it prevents individuals from interfering with or undermining the rights of their rightful heirs. Thus, the limitation of one-third ensures that a minimum of two-thirds of the property is distributed through succession. Secondly, by allowing the testator to bequeath one-third of the property, they are enabled to address rightful claims of even unrelated individuals or other relatives who are not legal heirs.

BIBLIOGRAPHY

Dr. Paras Diwan, Muslim law in Modern India.

Concept of Will under Muslim Law

Saxena, Dr. P. P. (2021). Family Law Lectures – Family Law II (5th ed., Vol. 1). Lexis Nexis.

Tripathi, A. K. (2024). THE CONCEPT OF ‘WILL’ UNDER MUSLIM LAW: A STUDY. International Journal of Law and Legal Jurisprudence Studies, 4(3), 70–83.

lc2.du.ac.in/DATA/Will.pdf

Shekhar, M., Shekhar, M. Bites, L.

1. Yawar Qazelbash, Principles of Muslim Law, (Fifth Edition, 2005), p.233 ↑
2. M.A Qureshi, Principles of Muhammadan Law, (Ninth Edition, 2005) p.327 ↑
3. AIR 1991 PATNA 154 ↑
4. (1898) 21 All. 91(P.C) ↑
5. Asaf. A.A.Fyzee, Outlines of Muhammadan Law (Fourth Edition,1974,) p.358 ↑
6. AIR 1932 PC 81 ↑
7. AIR 1989 Bom 1 ↑
8. Shekhar, M., Shekhar, M., & Bites, L. (2022, December 28). Legal Bites. Legal Bites.