WILL IN MUSLIM PERSONAL LAW

WILL: (also called Testament or Wasiyat)

Definition: Section 2(h) Succession Act , 1925.
“Will is a legal declaration of intention of testator (legator) with respect
to his property which he desires to be carried out after his death.”
(Section 59-179 of Succession Act, 1925 deals with “WILL”)

IMPORTANT TERMS:
Legator and Legatee:
The person who executes the Will is called ‘legator’ or ‘testator’ and the
person in whose favour the Will is made is known as ‘legatee’ or
‘testatrix’.
Legacy:- The subject matter of the will. It is the property to be
distributed among the heirs.
Bequest: A bequest is property given by will.

Executor:- The testator, while executing the will, may appoint a person
to execute the will in accordance with its contents (after his death). In
the absence of the appointment of Executor by the testator, the Court
may appoint a person called 'Administrator' to execute the will.
Wasiyatnama:
A document embodying the will is called Wasiyatnama.

EXPLANATION:
When a Muslim dies there are four duties which need to be performed,
from his property. These are:
• Payment of funeral/burial expenses
• Payment of his/her debts/dower
• Execution of his/her will
• Distribution of the remaining estate amongst the heirs according
to Shariat.

CONDITIONS FOR A WILL TO BE VALID:

 COMPETENCE OF TESTATOR: Under Muslim law , a testator
must be Muslim , Sound Minded and Major. (In certain cases, a
minor can also make a will, but such will needs to be validated
upon attaining the age of majority).

 COMPETENCE OF LEGATEE: Any person having 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, 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 or within 10
months of the death of testator (under Shia law). A person who
 renounces Islam cannot be a competent legatee. An institution is
also a valid legatee. In the general sense, the institution should
not be hostile towards Islam and not promote anti-Islamic
activities.

 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 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.

 TESTAMENTARY CAPACITY / EXTENT OF WILL: 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).

OBJECT OF WILL:
The object of Wills according to the tradition of the Prophet is to provide
for the maintenance of members of family and other relatives where
they cannot be properly provided for by the law of inheritance.
It affords the testator the opportunity to make provisions for his heirs
and dependents. It is also a way of fending for the poor and rewarding
deserving friends and servants.
.REVOCATION / ALTERATION OF WILL:
The testator may revoke/alter his will at any time before his or her
death either expressly or impliedly.
Expressly: e.g in oral or writing
Impliedly: e g by the sale of bequeathed property or by gifting the
property.
CODICIL:
Codicil means an instrument made in relation to a will and explaining,
altering or adding to its dispositions and shall be deemed to form part of
the will. The codicil is generally made to make slight changes in the will,
which has already been executed. A codicil cannot alter a will more
than what is necessary to carry out the testator's intention as evidenced
by the will and the codicil.

WILL MADE IN FAVOR OF LEGAL HEIRS:

Under Sunni law, when a will is to be made in favor of a legal heir, in
such a case , the consent of other legal heirs is necessary.
Under Shia law, consent of other heirs is not necessary while making a
will in favor of a legal heir.
WHEN LEGATEE DIES BEFORE LEGATOR:
A will made by a legator becomes complete only when it is accepted by
the legatee.
Under Sunni law, acceptance of will can take place only after the death
of the legator. So when a legatee dies before the legator, in such
cases, the will made by the legator is revoked automatically.
Under Shia law, acceptance of will takes place in the lifetime of the
legator and even after his death. So when a legatee dies before the
death of legator, in such cases, the will is valid and the bequeathed
property will pass on to the legal heirs of the legatee. In case, legatee
has no legal heirs , then the will made by the legator revokes
automatically.

CONTINGENT WILL:
A contingent (conditional) will is valid , however, such conditions must
not be immoral.

MURDER OF LEGATOR BY LEGATEE:

Under Sunni law, when a legatee kills the legator or causes his death
whether intentionally or unintentionally, negligently or accidentally, the
legatee is not allowed (disentitled) to take the will property.
However, under Shia law, if the death of the legator by legatee is
because of neglegence, accident or unintentional, then the will is valid
and the legatee is entitled to take the will property.

ATTEMPT TO SUICIDE BY LEGATOR:

If a Will is executed by a person who has attempted to commit suicide,
such a Will is contemplated as void under the Shia law. However,
under Sunni law, a Will executed in such circumstances is completely
valid. Moreover, both Shia and Sunni law upheld the validity of a Will
declared by a legator long before attempting to commit suicide.

COMPARISON: SUNNI & SHIA LAW:

1):A BEQUEST TO AN HEIR:

Sunni law: It is invalid even to the one-third of property without the
consent of other heirs.
Shia law: It is valid up to one-third of property and for more than one-
third, consent is a must.
2): ACCEPTANCE:
Sunni law: Acceptance of will can be made by legatee after the death
of the legator.
Shia law: Acceptance can be made before or after the death of the
legator.

3):LEGATEE CAUSING THE DEATH OF LEGATOR

Sunni law:If legatee commits murder or causes the death of the
legator, he cannot take legator’s property under a Will.
Shia Law:if the death is caused intentionally, legatee can’t take the
property whereas if the death is caused accidentally or negligently, then
he can take the property.

4);SUICIDE ATTEMPT BY LEGATOR:

Sunni law: A Will is valid if a legator commits suicide before or after
the execution of the Will.
Shia law : A Will is valid only if the legator commits suicide after
executed the Will.

5): CHILD IN WOMB:

Sunni law: Bequest for an unborn child is valid if he is born within 6
months of making the Will.
Shia law: Bequest for an unborn child is valid if he is born within 10
months of making the Will.

6):LEGATEE DIES BEFORE LEGATOR:

Sunni law: If so happened, the legacy reverts to the legator.
Shia law; The legacy Will lapse only when legatee dies without leaving
an heir or the legator revokes the Will himself.

7): ABATEMENT OF LEGACIES:

Sunni law: The rule of rateable distribution is followed.
Shia law: The rule of preferential distribution is followed.

CONCLUSION:
Will provides the right and opportunity to the testator to correct the law
of succession to some extent. The Muslim Law of Will confer a right to
person to devolve his property upon a person of his choice while
keeping in mind the rational balance between the law of inheritance
and devolution of property under a Will.

THE END