Concept of Wills Under Muslim Law 2nd

Year

Assignment on
Family Law-
Muslim Law

Concept of Wills
Under Muslim
Law
GUIDED BY –PROF.
DR KAHKASHAN Y.
DANYAL

Submitted by – Mohd Abid

Hussain Ansari
 Concept of Wills Under Muslim Law 2nd
Year

Acknowledgement

Writing the Acknowledgement for the project in the subject of

Family Law is a fairly simple undertaking for anyone who has
attended even a single class of Prof. K.D Mam. The clarity,
the command and the humour she brings into every class is
infectious, making any student believe that there can be no
easier subject that the Family Law and that anyone can master
it, provided she gives the subject the respect and recognition
that Mam herself gives the subject.

Furthermore I would like to thank all those people who gave

the subject their time and wrote books which I eventually
referred. In this matter, I would particularly like to thank

 Khalid Rashid- Muslim Jurisprudence

 Dr.Mohammad Nazmi- Mohammadan Law
 Fyzee: Outlines of Mohammadan Law 4th edn, 365 etc.,
whose book was precise and the largest reference in this
work.

Without the contribution of the above said people I could have

never completed this project.

Mohd. Abid Hussain Ansari

1|Page
 Concept of Wills Under Muslim Law 2nd
Year

B.A.LL.B (Hons) 4th Semester

2nd Year

Table of Contents
1. Introduction…………………………………………………………
……………………………….……………….3
2. Introduction to Family Law – Muslim
Law…………………………………………………………………
…5
3. Introduction – Wills (Wasiyat-Nama)
……………………………………………………………..
……………6
4. The Importance of Islamic
Will…………………………………………………………………
……..…………8
5. Origin of the law of
Will…………………………………………………………………
…………………………9
6. General Rule – No Formality is
required……………………………………………………………
……...10
7. Requisites of a valid
Will…………………………………………………………………
………………………12
8. Testator and his
competence…………………………………………………………
………………............12
9. Legatee and his
Competence…………………………………………………………
…………...................13

2|Page
 Concept of Wills Under Muslim Law 2nd
Year

10.Subject of will and its

validity………………………………………………………………
………………….15
11.Testamentary power and its
limits………………………………………………………………
…………….16
12.Exception to the general
rule…………………………………………………………………
…..................17
13.Custom……………………………………………………………
…………………………………………………..18
14.Doctrine of
Consent……………………………………………………………
…………………………………..18
15.Revocation of
will…………………………………………………………………
……………………………….19
16.Rateable
abatement…………………………………………………………
……………………………………..20
17.Lapsing of
Legacy………………………………………………………………
…………………………………..22
18.Probate and the letter of
administration…………………………….........................................
.....22
19. Testamentary disposition of more than 1/3rd of the
property…………………...........................22
20.Difference between Sunni and Shia
Law…………………………………………………………………
…..23
21.Conclusion…………………………………………………………
…………………………………………………24
22.Bibliography………………………………………………………
…………………………………………………26

3|Page
 Concept of Wills Under Muslim Law 2nd
Year

Introduction
For a beatific and beautiful beginning, I begin my assignment with
‘BISMILLAH’. Infinite glory and thanks be to Allahu ta’ala who bestowed
upon us all kinds of favours and honoured us by making Muslims and valued us
by making us the Umma of Rasulullah Muhammad (sall-Allahu ta’ala’alaihi
wa sallam), which is the highest blessing.

Allahu ta’ala has mercy upon all people on the earth. He creates useful things
and sends them to everybody. He shows the way to Endless Bliss. He guides to
the right path whomever He wishes among those who left the true way and
followed the way to Kufr (infidelity) and heresy as a result of being deceived by
their own nafs (human desires), bad friends, harmful books, and the media. He
saves them from eternal calamity. He does not bestow this blessing upon those
who are cruel and exceed their limits. He lets them stay on the way of Kufr,
which they like and desire. In the next world, He will forgive whomever He
wants of those guilty Believers who are to go to Hell, and He will admit them to
Paradise. He alone creates every living creature, keeps every being in existence
every moment and protects all against fear and horror. If anyone thanks and
praises anyone else at any time and at any place for any reason, these thanks and
praise thus paid belongs to Allahu ta’ala by rights, for He is the only One who
creates and sends all kinds of blessings and goodness. If He would not remind,
create, and give all strength, no one could ever do any goodness or harm to
anyone else. Only what He wills, comes into existence. No one can do anything
against His will.

We should mediate and realize that Allahu ta’ala alone blesses every favour
upon everybody. Superior and good qualities of men are all His blessings and
favours. Our life, reason, knowledge, strength, sense of hearing and speech are

4|Page
 Concept of Wills Under Muslim Law 2nd
Year

all from Him. He always is the one who sends innumerable blessings and
favours. He is the one who rescues human beings from trouble and distress, who
accepts prayers and keeps away grief disaster. Only He creates sustenance and
causes them to reach us. His blessing is so bountiful that He does not cut off the
sustenance of those who commit sins. His covering sins is so great that He does
not disgrace or hold up the scorn or tear the honesty veil of who do not obey His
commands or abstain from His prohibitions. He is so forgiving, so merciful that
He does not hurry in punishing those who deserve punishment and torture
(‘adhab). He scatters His blessings and favours upon both those whom He likes
and His enemies. He does not spare anything from anybody. And as the highest,
the most precious of His benefactions, He points out the right path to happiness
and salvation. He warns us not to go astray, so that we go to paradise. And He
orders us to adapt ourselves to His beloved Prophet Muhammad (sall-Allahu
ta’ala’alaihi wa sallam) in order that we may attain all the infinite blessings,
endless and inexhaustible pleasures in paradise, and His own approval and love.
Thus Allahu ta’ala’s blessings are as obvious as the sun. The favours which
come from others, in fact, come from Him. He, again, is the One who makes
others intermediaries and gives wish, power and strength to do favours. For this
reasons, He is the one who sends all the blessings that come through all places
and all people. To expect favours from anybody but Him is like asking for
something from the custodian or asking for alms from the poor. The ignorant as
well as the educated, and blockheads as well as the intelligent and the keen
know that what we say here is right and to the point, for, everything said is
obvious facts. It is not necessary even to think them over. Trusting ourselves to
the honourable name of Allahu ta’ala, that is, expecting help from Him I would
like to start my assignment.

May hamd be to Allahu ta’ala. Peace and blessings be upon His beloved
Prophet Muhammad (sall-Allahu ta’ala’alaihi wa sallam). May all auspicious
prayers be on his Ahl al-Bait and on each of his just devoted companions (as-
Sahabat al-kiram).

Muslims are required to learn “Islamic Knowledge.” It is divided into two

branches, “Religious Knowledge” and “Scientific Knowledge.” So learning
Islamic Knowledge as much as necessary is an obligatory duty (Fard) for every
Muslim.

5|Page
 Concept of Wills Under Muslim Law 2nd
Year

Introduction – Family Law (Muslim Law)

In Indian terminology personal law is very familiar expression. It is not quite
difficult to understand and in the same manner not so easy to define. It is very
difficult to define personal law but some of the writers have tried to define it so
as Mulla has described Personal law as “the law and custom as to succession
and family relations”. This definition has been generally accepted as a fairly
workable definition or description. According to Justice Bhagwati in Supreme
court decision in Pradeep Jain v. Union of India1, has referred to personal law
as the law “by which an individual is governed in respect of various matters
such as, the essentials validity of a marriage, the effects of marriage on the
proprietary rights of husband and wife, jurisdiction in divorce or nullity of
marriage, illegitimacy, legitimation and adoption and testamentary and
intestate succession to movables”.

The applicability of personal law in the country like India depends solely on
religion. Hindu, Muslim, Christian, Parsi, e.t.c which are governed by their own
personal law as Hindu law, Muslim law, Christian law, Parsi law, respectively.
From the religious point of view the personal law is defined as “that body of
law which applies to a person or to a matter solely on the ground of his
belonging to or its being associated with a particular religion”.

The Muslim Law or Islamic Law (or the Law of Allah) is a part of Family

Law. It is a personal law that is applied by courts in regard to family matters
when the parties are Muslims. Muslim Law is called Sharia (Shariah or Syariah)
in Arabic. Fiqh means understanding of details and refers to the inferences
drawn by scholars. Sharia refers to the principles that lie behind the fiqh. The
1
1984 AIR 1420, 1984 SCR (3) 942

6|Page
 Concept of Wills Under Muslim Law 2nd
Year

word 'Muslim' is derived from the word 'Islam' and signifies a person who
adopts the faith of Islam. Muslim Law in general draws no distinction between
religious life and secular life.

Introduction – Wills (Wasiyat-Nama)

Will-The Primary Instrument of Muslim Testamentary
Succession
“The instincts and affections of mankind, in the vast majority of instances,
WILL lead man to make provisions for those who are nearest to them in kindred
and who in life have been the objects of their affections.”

Under the Muslim law, the concept of making a will is desirable and virtuous
act.

“A will from the Muslim point of view is a divine institution, since its exercise
is regulated by the Quran al-kerim. It offers to the testator the means of
correcting to a certain extent the law of succession…of recognizing the services
rendered by a stranger, or the devotion to him in his last moments…”

The Prophet Muhammad (sall-Allahu ta’ala’alaihi wa sallam) has said:

“Allahu ta’ala has bestowed (the option) upon you in 1/3rd of your property at
the last moment of your life to increase your good deeds.”

“A Muslim, who holds property, has no right to pass even two nights without
making and keeping a written will with me.”

Ibn Umar said, “since I heard this from my Prophet Muhammad (sall-Allahu
ta’ala’alaihi wa sallam), I have not passed a single night without having my
will with me.”

7|Page
 Concept of Wills Under Muslim Law 2nd
Year

A will is the legal declaration of the intention of a testator with respect to his
property which he desires to be carried into effect after his death. 2 The will is
not transfer but a mode of devolution.3 According to Hedaya,4 an authoritative
book on Sunni Law,

“Wasiyat means an endowment with the property of

anything after death, as if one person should say to another, “give this article of
mine after my death to a particular person.” The thing so given is termed the
legacy or the subject of the bequest; the person who wills that it be given is
denominated testator; the person in whose favour the will is made is called the
legatee and the person appointed to carry the will into execution is called the
executor or the wasi.”5

The Muslim testamentary succession is entirely governed by the Muslim

Personal Law which covers the powers to make the will, the nature of the will,
the execution procedure, conditions of validity etc. The term ‘wasiyat' means an
endowment with the property of anything after death. To bequeath it, in the
language of law, to confer a right of property in a specific thing, or in a profit or
advantage in the manner of gratuity postponed till after death of the testator.
The document containing the ‘will' is the wasiyat-nama.

A wasiyat can be made orally or in writing in which case it does not have to be
attested. Though it is in writing, it need not be signed by the testator and
attested by the witnesses. The option of revocation or modification in the will is
available to the testator in his lifetime. The essential condition for a valid will in
Muslim law (as that in the Hindu testamentary succession) is that only property
with absolute ownership of the testator can be bequeathed. A bequest which is
contingent, or conditional or in the future or is alternative to another, pre-
existing one, would be void.

Restrictions on testamentary capacity of Muslims:

Islam recognizes the indispensible necessity that a man should have the power
of making bequests. This however does not imply that he has the power to
encroach upon the share of his legal heirs as stated in the holy Quran. Quoting
Ameer Ali, “the Prophet has declared that power should not be exercised to the
2
Section 3 of the Indian Succession Act, 1925
3
Kaniz Zohra v. Deputy Director, Consolidation, 1968 R.D. 9.
4
Hamilton’s Hedaya (Grady ed.), 670.
5
A Will is defined in Fatwa-i-Alamgiri “to be the conferment of a right of property in a specific thing, or in a
profit or advantage, in the manner of gratuity to take effect on the death of the testator. According to Sharai-
ul-Islam an authoritative book on Shia Law, “making one person of another as proprietor of the corpus or its
proceeds of his property after one’s own death is called will.”-Beirut ed., p.258.

8|Page
 Concept of Wills Under Muslim Law 2nd
Year

injury of lawful heirs”. Hence there are restrictions imposed on the testamentary
capacity of Muslims.

Muslim testamentary capacity is regulated in two ways:

1. The One third rule:

This rule states that a Muslim cannot make bequest of more than one-third of
his net property, after the discharge of debts and funeral expenses, if there are
heirs present. Even for bequeathing the 1/3rd share, the Muslim has to obtain
the consent of the other heirs. All schools of Muslim Law except the Ithana
Ashari School lay down that bequest of more than one third unless consented to
by the heirs is invalid or a custom or usage so permits.

2. The consent of the heirs to confer in excess of one-third through will:

As mentioned above, a Muslim has to obtain consent of all the surviving heirs
to devolve property in excess of one-third through will. This rule is in place to
ensure that the heirs have voluntarily consented to the infringement of their
right in the testator's property and are not wronged in anyway. Such consent
may be through words or implied conduct, but not through silence

Another limitation on the testamentary capacity is that this power should not be
used to benefit one particular heir, unless consented by other heirs. In the
absence of such approval, the will unjustly enriching one heir over all others
shall not be recognized as a valid will.

A Will from the Musalman’s point of view is a divine institution, since its
exercise is regulated by Quran al-kerim. It offers to the testator the means of
correcting to a certain extent the law of succession, and of enabling some of the
relatives who are excluded from inheritance to obtain a share in his goods and
of recognizing the services rendered to him by a stranger, or the devotion to him
in his last moments. At the same time the Prophet Muhammad (sall-Allahu
ta’ala’alaihi wa sallam) has declared that the power should not be exercised to
the injury of the lawful heirs.6 The exercise of the testamentary powers is
restricted to a third of the estate in the Muslim system so as not to deprive the
lawful heirs of their just claims. A document embodying the will is called
Wasiyatnama.

Elements of will:
6
2 Str.H.L., 453 (M. Sautayra)

9|Page
 Concept of Wills Under Muslim Law 2nd
Year

 Will is a conferment of right to one’s property on another.

 This conferment of right is to take effect after the death of the testator.

The significance and meaning of the word ‘conferment’ in the definition is that
the conferment must be complete and should not be a mere intention to confer
the right of property. The second element of the definition connotes the most
important characteristics of a will and that is that the right conferred in the
property is to take effect after the death of the maker (testator) of the will.

The Importance of Islamic Will

The importance of the Islamic will (wasiyya) is clear from the following
two hadith:

 "It is the duty of a Muslim who has anything to bequest not to let two
nights pass without writing a will about it." (Sahih al-Bukhari)

 "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." (Ahmad and Ibn Majah)

Origin of the law of Will

It is reported by Bukhari7. Sad ibn Abi Wqqas said, ‘The Prophet Muhammad
(sall-Allahu ta’ala’alaihi wa sallam) used to visit me at Mecca, in the year of
the Farewell pilgrimage, on account of (my) illness which had become very
severe.’ So I said, ‘my illness has become very severe and I have much property
and there is none to inherit me but a daughter, shall I then bequeath, 2/3 rd of
property as a charity.’ He said, ‘No’, I said, ‘Half’, he said, ‘No’. Then he said,
‘bequeath 1/3rd and 1/3rd is much for if thou leavest thy heirs free form want, it
is better than that thou leavest them in want begging of (other) people; and thou
art rewarded for it, even for that which thou puttest into the mouth of thy wife.”

Hence, the object of wills according to the traditions of the Prophet

Muhammad (sall-Allahu ta’ala’alaihi wa sallam) is to provide for the

7
Mohammad Ali Manual of Hadith (Lahore 1994), 334-35. No.2

10 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

maintenance of the members of family and other relatives where they cannot be
properly provided for by the law of inheritance.

A tradition from the Prophet Muhammad (sall-Allahu ta’ala’alaihi wa sallam)

lays down that it is ethically incumbent upon a Muslim to make arrangements
for the distribution of his property after his death and that a Muslim having
property should not sleep even for two nights unless he has made a written will.
But in order to protect the rights of the lawful heirs, the testamentary power is
limited to 1/3rd of the property. Thus, the policy of the Muslim Law is to permit
a man to give away the whole of his property by gift inter vivos, but to prevent
him, except for 1/3rd of his estate, from interfering by will with the course of the
devolution of the property according to the laws of inheritance.8

General Rule – No Formality is required

As a general rule no formality is required in for making a will. Any expression
of unequivocal expression will suffice.

Orally or in writing – a will may be made either orally or in writing. It is not

necessary that a testamentary disposition should be in writing. If it is made
orally, no particularly form of words are required, so long as the intention of the
testator is clear. If the will is in writing, it need not even be signed by the
testator or attested by the witnesses, because the verse in the Quran al-kerim
regarding witnesses is considered merely as a recommendation, and is not
mandatory.9

In Mohamed Altaf v. Ahmed Buksh10, it was held by the Privy Council that by
the Muslim Law no writing is necessary to make a will valid, and no particular
form, even verbal declaration is necessary as long as the intention of the testator
is sufficient ascertained.

In Mazhar Husain v. Bodha Bibi11, the Privy Council held that a letter written
by a testator shortly before his death and containing directions as to the
dispositions of his property constituted a valid will.

8
Ameer Ali:Mohammedan Law (Vol.1) p.186
9
Quran al-kerim 50-106. “The evidence of two just witnesses from amongst you at the time of making the
will”.
10
(1876) 25 W.R. 121 (PC)
11
21 All 91 (PC)

11 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

In the case of Aulia Bibi v. Alauddin12, it was found that a document purporting
to be the will of a Muslim lady was in fact drawn up in accordance with
instructions given by the testatrix to a lawyer at a time when she was competent
to make a will. The Allahabad High Court held that such a document was a
valid will notwithstanding the absence of the signature of the testatrix.

In Venkat Rao v. Namdeo13, it was held by the Privy Council that the burden of
establishing an oral will is always a very heavy one on those who assert; it must
be proved with the utmost precision, and with every circumstance of time and
place.

The court shall put such a will into force only when it is quite evident from the
circumstances and statements of the witnesses as to the actual words uttered by
the testator and the Court is able to conclude from the circumstances and the
evidence the real intent of the deceased to the fact that it should be regarded as
his last will. Besides, In Mahabir Prasad v. Mustafa14, the court must also be
completely satisfied with the contents of the instruction of the testator.

Muslim Law of will and the Indian Succession Act,

1925:-
The provisions of Indian Successions Act, 1925 are not applicable to Muslims.
However, a Muslim cannot claim immunity if his marriage was held under the
Special Marriage Act, 1954. In such cases the provisions of the Indian
Successions Act, 1925 shall be applicable even though the will was made before
or after the marriage. Where a will is governed by the Muslim Law it will be
subject to the provisions of the Shariat Act, 1937.

12
(1906) 28 All 715
13
AIR 1931 PC 285
14
AIR 1937 PC 174

12 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

Requisites of a valid Will

The essential requisites of a valid will, under Muslim Law are as follows:-

 The testator must be competent to make the will.

 The legatee must be competent to take the legacy or bequest.15
 The subject of bequest must be a valid one.
 The bequest must be within the limits imposed on the testamentary power
of a Muslim.

Testator and his competence.

Every adult Muslim of sound mind can make a will. Thus a minor or a lunatic
are not competent to execute a will. A minor is incompetent to make a will but
when a will is made by a minor it may subsequently be validated by his
ratification on attaining majority. In case of Abdul Manan Khan v. Murtaza
Khan16 Patna High Court held that any Muslim having a sound mind and not a
minor may make a will to dispose of the property. So far as a deed of will is
concerned, no formality or a particular form is required in law for the purpose
of creating a valid will. An unequivocal expression by the testator serves the
purpose.
15
A.M.Khan v. Mirtuza Khan AIR 1991 Pat.154
16
AIR 1991 Pat. 155

13 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

A bequest made by a person of unsound mind cannot be deemed valid, if he

becomes of sound mind subsequently. In the converse case, a bequest made by a
person, while of sound mind, becomes invalid, if the testator is permanently
disabled by unsoundness of mind. Where the testatrix clearly expressed herself
that after her death, the properties will devolve upon her heirs in the manners as
has been described in detail in the document the same constituted a will and not
a deed of partition especially when the beneficiaries did not have any share in
the properties of the lady executing the document during her lifetime.17

Who is a Minor?
Who is a minor that can be understood by two ways:-

 Who is minor as per Muslim Law?

 Who is minor as per Indian Majority Act?

According to Muslim Law, the age of majority is 15 years and minority of a

person terminates at that age. But this rule is not applicable to wills in India
since the age of majority, in case of will is governed by the Indian Majority Act
and not by the personal law.

According to the Indian Majority Act, the minority terminates at the age of 18
years, but if the minor is one whose guardian has been appointed by the Court,
the minority will terminate at the age of 21 years. Thus a person of 18 years or
21 years, as the case may be, is competent to make a will.

Will of a person who is committing suicide.

Under Sunni Law, the will of a person committing suicide is valid. But under
Shia Law, a will made by a person who has done any act towards the
commission of suicide is not valid, but if the will is made before doing of any
act towards the commission of suicide, it is valid.

In case of Mazhar Husen v. Bodha Bibi18 the deceased first made his will, and
afterwards took poison. The Privy Council held that the will was valid, though
he had contemplated suicide at the time of making the will.

17
Ibid.
18
21 All.91

14 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

A will procured by undue influence, coercion or fraud is not valid, and the
courts take great care in admitting the will of a pardanashin woman.

Legatee and his Competence.

Any person capable of holding property may be the legatee under a will. Thus
sex, age, creed or religion is no bar to the taking of a bequest. No one can be
made the beneficial owner of the shares against his will. Therefore, the title to
the subjects of bequest can only be completed with the express or implied assent
of the legatee after the death of the testator.

1. Bequest to an institution – A bequest may be validly made for the

benefit of an institution.
2. Bequest to a non-Muslim – A bequest in favour of a non-Muslim is
valid. In Hedaya the following verses of the Quran al-kerim has been
quoted:-
“Ye are not prohibited, O believers, from acts of benevolence
towards those who subjects themselves to you, and refrain from
battles and contentions.”

It is, therefore, clear that a Muslim can give his property by bequesting the same
in favour of a non-Muslim is not hostile towards Islam.

3. Bequest to testator’s Murderer – According to Sunni Law, a bequest to a

person who caused the death of the testator whether intentionally or
unintentionally is invalid. Under Hanafi Law, a will in respect of a person
who has caused the death of the testator can be validated if the heirs have
given their consent.

But according to the Shia Law, it is invalid if it is caused intentionally and not if
accidentally or unintentionally.

4. Bequest to an unborn person – A child who is born within 6

months of the date of making the will is treated as a legatee in existence and
hence competent to take the bequest. But in Shia Law, a bequest to a child in
the womb is valid, if it is born in the longest period of gestation, i.e., ten
lunar months.

15 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

5. Bequest for a charitable object – A bequest for the benefit of a religious

or charitable object is valid. The only requisite is a general intention to
charity, e.g., where a bequest is made in the way of God, it is valid and the
legacy must be spent on good and pious objects. Under Muslim Law, certain
restrictions have been imposed on the rights of the legators to make a will
depriving the rights of the heirs. The Calcutta High Court has said that the
restriction against will to heirs cannot be got over either under colour of a
religious bequest or by having recourse to a partition deed between the
legato and his heirs.

In case of Abdul Cader v. Turner19 it was held by the court that the bequest to a
person not in existence at the time of death of the testator is void. But a bequest
in favour of a child in the womb is valid provided it is born within 6 months
from the date of the will.

A bequest may be made by a Muslim in favour of any person capable of holding

the property, the religion of the legatee being immaterial.20

In case of Chunnu Bibi v. Mohammad Riaz21 the Lahore High Court held that:

“the Muslim law contains two rules about the existence of the legatee in order
that he may benefit from the will; one being that he must be in existence at the
time of the making of the will either actually or presumably, the presumed
existence meaning birth within 6 months of the will; and the other that he
should be in existence at the time of the death of the testator. At first sight there
appears that the two rules are irreconcilable, but a careful consideration reveals
that the two rules deal with two different sets of circumstances and are
completely reconcilable with each other.”

Subject of will and its validity

In order to constitute a valid will, followings are the requisites:

1. The property must be capable of being transferred;

19
(1894) 9 Bom 158.
20
Fyzee: Outlines of Mohammadan Law 4th edn, 365.
21
P.L.D. (1956) Lahore 786.

16 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

2. The property must be in existence at the time of testator’s death. It is not

necessary that it should be in existence at the time of the making of the
will;
3. The testator must be the owner of the property to be disposed by will.

The validity of following bequest under Muslim Law:

Bequest in future: A bequest cannot be made of anything to be

performed or produced in future.

Contingent bequest: Bequest of a property which is conditional to

take effect on the happening or not happening of an
uncertain event is void.

Alternative bequest: An alternative bequest of property, i.e., to one

or failing him to the other person is valid. The bequest to the
1st person if he is in existence at the time of testator’s death
will be deemed to be absolute. Hence he will take the
bequest. If the 1st person predeceases, the testator, the 2nd
person will take the bequest.

Conditional bequest: A will subject to certain conditions is called

conditional bequest. A bequest with a condition which
derogates from the completeness of, the grant takes effect as
if no condition was attached to it, for the condition is void.
The condition so attached need not be fulfilled and the
legatee gets absolute unconditional interest in the property
bequeathed to him. For example, A makes a will of certain
property to B. It is provided by the will-deed that B shall not
sell the property. The restraint against the sale is void, and B
takes the property absolutely.22

Bequest of life-estate: Sunni Law treats a bequest to life-estate as

bequest with a condition attached to it and as such the rule of
a conditional gift applies, i.e., the bequest takes effect while
the condition becomes void, for instance, a bequest to A for
life and after his death to B is in its legal effect a bequest to
22
Babu Lal v. Ghansham Das, AIR 1992 All 205; Abdul Karim v. Abdul Qayum, (1906) 28 All 342.

17 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

A absolutely and B takes nothing under it. Thus a bequest of

life-estate is not recognized under Muslim Law.

Testamentary power and its limits:

The testamentary capacity of a Muslim is limited. He does not possess an
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. The two-fold
restrictions 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.

1. Limitation as regards the person. - The general rule in this

regard has been very clearly laid in the case of Ghulam Mohammed v.
Ghulam Hussain.23 It was held that a bequest in favour of an heir is not
valid unless the others heirs consent to the bequest after the death of the
testator.

In Fukan v. Mumtaz Begum24 the Rajasthan High Court had confirmed the
well-settled principle that a bequest in favour of an heir, even to the extent of
1/3rd was not valid under the Hanafi Law, unless the other heirs consented it,
expressly or impliedly after the death of his testator.

In Abdul Manan Khan v. Murtaza Khan25, The Patna High Court held that a
bequest in favour of an heir is invalid unless the other heirs consent to it after
the testator’s death. A provision has been made in law to obtain consent of the
heirs after the death of the testator; if any reason of a will more than 1/3 rd of the
properties is sought to be bequeathed to an outsider and to any extent to an heir.
Such consent can be inferred from conduct. Acts of attestation of will be
legatees and taking of possession by them of property bequeathed could signify
such consent.

In case of Khajoorunissa v. Raushen Jehan26, The court clears the difference

between a gift and a will. It was held that the policy of Mohammedan Law
appears to prevent a testator from inferring with the course of devolution of
property according to law among his heirs.
23
54 Alld. 98: 1932 PC 81.
24
AIR 1971 Raj 149.
25
AIR 1991 Pat. 155.
26
3 I.A.291,307

18 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

Under Shia Law no consent is required:

According to Shia Law, a testator may give a legacy to an heir so long as it does
not exceed 1/3rd of his estate. Such a legacy is valid without the consent of the
other heirs. But if the legacy exceeds 1/3rd it is not valid unless the other heirs
consent thereto; such consent may be given before or after the death of the
testator. But where the whole estate is to be bequeathed to one heir and the other
heirs are excluded entirely from inheritance the bequest is void in its entirety.27

2. Limitation as regard the property. - The general rule with

regard to the extent of property that may be disposed of by will is that no
Muslim can make a bequest of more than 1/3rd of his net assets after
payment of funeral charges and debts.

Exception to the general rule:

 Under Hanafi Law, a bequest or more than 1/3 rd of the net assets may be
valid, if the heirs, whose rights are infringed thereby, give their consent to
the bequest after the death of the testator. In Shia Law such consent
validates the will whether given before or after the testator’s death.
 The above rule of bequeathed 1/3rd will not apply to a case where the
testator has no heir. The right of 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. In other words, Government is
no heir to an heirless person.

Custom
Among Eunuchs community of Muslim Guru-Chela system was prevalent. As
per their customs a Muslim could not have willed more than 1/3 rd of his
property without the consent of his chela to an outsider, the will in respect of
entire property of a Guru, in favour of an outsider could not be held to be valid.
Under this custom a chela alone is the heir of his Guru. Though the Muslim
Law does not debar a Muslim from executing a will of his property in favour of
any one including the persons in whose favor the will is to be executed would
not be contrary to this law. The Court held such custom does not violate the
27
Husaini Begum v. Mohammad Mehdi, (1927) 49 All.547.

19 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

aforesaid law. It only limits the choice of legatee without effecting the right to
execute the will and such a custom was not either against public policy or the
Muslim Law.28

Consent
According to the exceptions to general rules a bequest of more than 1/3 rd of the
testator’s property is valid if the other heirs give their consent to it. Similarly, a
bequest to an heir with the consent of heirs is also valid. There is no difference
between Sunni and the Shia Schools as to the consent of the heirs if the
bequeathed property exceeds 1/3rd of the estate. Certain rules which should be
followed they are listed below:

 Consent when to be given? –According to Sunni Law, the consent

must be given after the death of the testator. Consent given during his
lifetime is of no legal effect. Under Shia Law, the consent may be given
either before or after the death of the testator. Consent of heirs means
consent of those persons who are heirs of the testator at the time of his death,
not the consent of a presumptive or would be heir. Such consent must be free
consent. A consent given under undue influence, fraud, coercion or
misrepresentation is no consent at all and it would not bind the person so
consenting.
 Consent how to be given? - Consent may be either express or
implied. Accordingly, the attestation of will by the heirs and acquiescence in
the legatee taking possession of the property has been held to be sufficient
consent. Similarly, when the heirs did not question the will for three quarters
of a century and the legatee had taken the allowances month after month, it
was held that the conduct of the heirs amount to consent.
 Consent of some of the heirs.- In cases where only some of the
heirs give their consent the shares of those consenting will be bound, and the
legacy in excess is payable out of the consenting heir’s share.
 Consent by heirs after the death of the testator . - A bequest in
favour of an heir is invalid unless the other heirs consent to it after the death
of the testator. A provision has been made in law to obtain consent of the
28
Illyas etc. v. Badshah etc. AIR 1996 M.P.634.

20 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

heirs after the death of the testator; if any reason of a will more than 1/3 rd of
the properties is sought to be bequeathed to an outsider and to any extent.
 Consent of an insolvent heir. - The consent of heirs who are
insolvent has been held effective in validating a bequest.

 Consent not rescindable. - Consent once given cannot be

subsequently rescinded.

Revocation of will
Muslim Law confers on a testator unfettered right to revoke his will. He may
revoke it at any time. The revocation may be either express or implied.

 Express revocation: An express revocation may be either oral or

written. For example- A makes a testamentary disposition of land in favour
of B. At any time after making the dispositions, he says “the land that I gave
to B is for X.” These words will amount to express revocation of the bequest.
In interpretation of the wills, the intention of the testators is of paramount
importance. Thus, if the testator bequeaths by will the same property to two
or more persons they will share the property equally.

 Implied revocation: Revocation of a bequest may be implied e.g.,

where the testator subsequently transfer the subject-matter of will or destroys
it, or completely alters its nature or makes such additions to it without which
the property cannot be delivered, etc. where A bequeaths a land to B and
subsequently builds a house over it, the bequest stands revoked. Similarly,
where the subject matter of bequest is a house and the testator sells it, or
makes a gift of it, the revocation is complete by implication.

 Subsequent will: Where a testator makes a will, and by a subsequent

will gives the same property to someone else, the prior bequest is revoked.
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 bequest,
and the property will be divided between the two legatees in equal shares.

21 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

General principles under the concept of will

Rateable abatement: By rateable abatement is meant “proportionate
reduction.” Where a bequest of more than 1/3rd of the
property is made to two or more persons and the heirs do not
consent, under Hanafi Law, the shares are reduced
proportionately to bring it down to 1/3rd or in other words,
the bequest abates rateably. Bequests for the purpose of
rateable abatement are divided into bequests for pious
purposes and bequest for secular purposes. As a general
class, bequests for pious purposes are decreased
proportionality to bequest for secular purposes, and do not
have precedence over them.

Bequest for Pious Purpose fall under three classes:-

I. Bequest for Faraiz: Under this head, that is, purposes expressly
ordained in the Quran al-kerim namely:
a) Hajj (Pilgrimage)
b) Zakat (Poor rate)
c) Expiation for prayers missed by a Muslim.
These are obligatory for Muslims.

II. Bequest for Wajibat: Under this, purposes not expressly

ordained, but which are in themselves proper, for example, charity given
on the day of breaking fast. These are singly recommended not
obligatory.
III. Bequest for Nawafil: Under this, bequests of a purely voluntary
nature, e.g., bequest to the poor, or for building a mosque, or a bridge, or
an inn for travellers of these three classes bequest of the first class take
precedence over bequest of the second and the third class and bequests of
the second class take precedence over those of the third. To take a
concrete illustration, assuming a Hanafi testator leaves Rs.3000/- jointly
to A and B and Rs.3000/- for pious purposes designated by him. The
bequeathable third amounts to Rs.4000/-; hence Rs.2000/- will be allotted

22 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

to the secular bequest and Rs.2000/- to the pious ones. Out of the sum of
Rs.2000/-. A and B will each receive Rs.1000/-.

The Shia Law does not accept the principle of rateable reduction. The rule of
Shia School is that, of the several bequests, the first in time prevails until the
bequesthable third is exhausted; and for the purpose of this rule where several
bequests are to be found in a will, priority is determined by the order in which
they are mentioned.

For example: if a testator leaves 1/3rd of his estate to A, 1/4th to B and 1/6th to C
and the heirs do not consent to these bequests. A takes 1/3 rd of the estate and B
and C will take nothing, but if instead of 1/3 rd, 1/12th had been left to A, then A
would have taken 1/12th and B 1/4th, but C who was mentioned last would get
nothing, as the legal third is exhausted between A and B.

Exception:
There is however, an exception to this rule. If a man bequest 1/3 rd of his estate
to two different persons in the same will, the later bequest prevails. For
instance, a testator by will gives 1/3rd of his estate to Hussain and later he says
that 1/3rd be given to Dolly, here Dolly gets 1/3rd to the exclusion of Hussain.

In the absence of heirs and as against the right of the state to take by
escheat, the testator may bequeath the whole of his property by will. Where a
testator dies leaving only a wife or husband and no blood relations, if he is a
man, he is entitled to bequeath 5/6th of his estate and if a woman to bequeath
2/3rd of her estate.

Shiite law on this point has a different rule. Here, if the deceased leaves only a
husband or wife surviving, the survivor is entitled to take his a her Quranic
Share in the estate, amounting to 1/2nd or 1/4th as the case may be, but not
entitled to take the residue of the estate by return. Moreover, the 1/2 nd or 1/3rd
Quranic Share is determined with reference to the net estate, i.e., after
deducting the debt of creditors of the deceased, funeral expenses and the right of
the deceased to make a will to the extent of 1/3rd.

Lapsing of Legacy:

23 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

Under Sunni Law if the legatee dies before the death of the testator the legacy
lapses and forms part of the testator’s estate.

Under Shia Law in the above case, the legacy does not lapse but passes to
the heir of the legatee, unless it is revoked by the testator. It will lapse, only if
the legatee has no heir.

Probate and the letter of administration:

A Mohammedan’s will may after the due proof, be admitted in evidence though
no probate has been obtained.29 Except as regards debts due to the estate of a
deceased. No letters of administration are necessary to establish any right to the
property of a Muslim who has died intestate.30

Testamentary disposition of more than 1/3rd of the property:

Where the testator has disposed of more than 1/3rd of the property by way of
will is not void. It is only invalid. Such a will can be legalized after obtaining
the consent of the heirs. The heirs may give their consent expressly or
impliedly. Under Hanafi Law the consent of the heir has to be obtained after the
legator’s death. In the absence of the consent of any heir, the will shall be void
to the extent of his share. The legato is competent to make a will in respect of
any particular heir.31

Shia Law is also identical to Sunni Law. Under this, a testator can dispose of
more than 1/3rd of the property. The heirs are fully competent to give their
consent during their lifetime and it need not be ratified after his death.

Difference between Sunni and Shia Law

Under Sunni Law
i. Bequest of any portion to an heir without the consent of others heirs is
invalid.
ii. A bequest to a child in womb is valid if born within 6 months.
iii. A legatee who causes death even by accident is disentitled.

29
Mohammad Yusuf v. Hargovanddas, 47 Bom.231.
30
Section 212 (2)- Indian Succession Act, 1925.
31
Mohd. Ala v. Husain Ali, AIR 1944 Oudh 25.

24 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

iv. Heir’s consent should be given after the death of the testator.
v. Recognition of rateable distribution.
vi. A will of a person committing suicide is valid.
vii. If the legatee does not survive the testator, the legacy lapses and reverts to
the testator.
viii. Acceptance of the legacy before the testator’s death is of no effect.

Under Shia Law

i. A bequest to the extent of 1/3rd can be made to an heir without the
consent of others heirs.
ii. It is valid even if born in the longest period of gestation, i.e., 10 months.
iii. Only intentional murder disentitles a legatee.
iv. Heir’s consent may be given before or after the death.
v. Rateable distribution is not recognized under Shia Law.
vi. It is valid only when the will is made before taking any step towards the
act of suicide.
vii. The legacy does not lapse but passes to the heirs of the legatee. It reverts
to the testator when the legatee dies without leaving any heir.
viii. Acceptance of the legacy during the testator’s life time is lawful.

Conclusion
A ‘will’ is a legal document through which a person declares his/her wishes
and instructions on how his/her property and possessions should be disposed
of, distributed or given away after his/her death.

Allahu ta’ala says in the Glorious Quran al-kerim:

25 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

“Prescribed for you when death approaches (any) of you if he leaves wealth
(is that he should make) a bequest for the parents and near relatives
according to what is acceptable – a duty upon the righteous.” [Surah Al-
Baqarah 2:180]

Based on this verse from the Quran al-kerim, it was earlier obligatory upon
the Muslims to make a will before death. But after the revelation of the
verses on inheritance (i.e. Surah Nisa 4:11-12), wherein Allahu ta’ala
legislated fixed shares of inheritance for deserving heirs, it is now not
compulsory in Islam for a person to write a will in his lifetime, because his
estate is divided as prescribed in Shari’ah among his living heirs. So after the
revelation of Surah Nisa 4:11-12, in an Islamic country where Islamic
Shari’ah is followed, it is not required making a will. In a non-Muslim
country like India that has a separate Muslim Personal Law, to make a will is
optional. If a Muslim fears that the non-Muslim country where Muslim
Personal Law is followed has chances of deviating from the Shari'ah in this
respect, it is preferable to make a will as per Qur’anic guidelines – otherwise
it is not required. Such a will is legally valid in India. However, in a non-
Muslim country like U.S.A. that does not have a separate Muslim Personal
Law, according to me it is compulsory for a Muslim to make a will as per the
guidelines laid by Allahu ta’ala in Surah Nisa (4:11-12), so that it forces the
law to execute Islamic Shari'ah as per your will. It is the right of every
citizen of a non-Muslim country, to will his property as per his desire,
because in the absence of will each country has its own method of
distributing the wealth. It may be obligatory as well on a person to make a
will, with regard to the dues of others where there is no proof, lest they be
lost or neglected, because the Muhammad (sall-Allahu ta’ala’alaihi wa
sallam) said:

“It is not permissible for any Muslim who has something to will to stay for
two nights without having his last will and testament written and kept ready
with him.” [Narrated by al-Bukhari al-Wasaayaa 2533]. One should also
‘will’ if he fears some kind of corruption or dispute among the heirs,
especially in a non-Muslim country. However, one does not have the right to
make a will for the legal heirs as per his own inclinations (or wishes),
because Allahu ta’ala has defined the share of each heir, and He has
explained who inherits and who does not inherit. So it is not permitted for

26 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

any person to transgress the limits set by Allahu ta’ala. “And whoever
disobeys Allah and His Messenger and transgresses His limits – He will put
him into the fire to abide eternally therein, and he will have a humiliating
punishment” [Surah Nisa 4:14] Allahu ta’ala has permitted us to make a will
to whomsoever we wish other than the legal inheritors for a maximum of
one-third of our wealth, The Muhammad (sall-Allahu ta’ala’alaihi wa
sallam)said: “Allahu ta’ala was being generous to you when He allowed
you to give one-third of your wealth (in charity) when you die, to increase
your good deeds.” [IbnMaajah,Kitaab al-Wasaayaa, Hadith No. 2709].
Therefore one can will up to one-third of his wealth to be used for charitable
purposes or else one can also give it to the people apart from the legal heirs,
because the Muhammad (sall-Allahu ta’ala’alaihi wa sallam) said:“There
is no will for the heirs. [Tirmidhi, Kitaab al-Wasaayaa, Hadith No.2120]

And Allah knows the best

Bibliography
I. Khalid Rashid- Muslim Jurisprudence
II. Dr.Mohammad Nazmi- Mohammadan Law
III. Fyzee: Outlines of Mohammadan Law 4th edn, 365
IV. Roop ki Shobha Delhi Edn. At Jamia Nagar
27 | P a g e
 Concept of Wills Under Muslim Law 2nd
Year

V. Behesti Jewer.
VI. The Muslim Law of India – Tahir Mehmood
VII. Principles of Islamic Jurisprudence by Prof.
Mohammad Hashim Kamali
VIII. Islamic Jurispudence: Mahhmoud A. El-Gamal
IX. Mulla, Principles of Mohammedan Law, 19th
ed, (Hidayatulla), Lexisnexis Butterworths,
New Delhi, 1990.
Articles
 Hussain Abid, The Islamic Law Of Wills, available at
http://www.hoor-al-ayn.com/articles/Misc/The%20Islamic
%20Law%20Of%20Wills.pdf( last visited on March 25, 2010).
 Khan Kamaluddin, Law of Wills in Muslim Law Muslim
Testamentary Succession, available at
http://www.twocircles.net/legal_circle/law_wills_muslim_law_
muslim_testamentary_successionkamaluddin_khan.html( last
visited on March 22, 2010).

Also help taken from these people and committee:

 Maulana Mehndi Hasan ( Rajdhanwar, Giridih, Jharkhand)

 Anjuman-e-Khuddam-e-Mazhari (Fatehpuri)
 Maulana Sikander (Aauliya Masjid, Mehrauli)
 Maulana Mukhtar Ali (Jama Masjid, giridih, Jharkhand)

28 | P a g e