Wills Under Muslim Law

WASIYAT
What is a Will?
• A will is a device or an instrument with the help of which an owner of
the property makes a disposition.
• It takes effect after his death of testator
• It is revocable in nature
• S.2(h) of the ISA, 1925 defines will as: “ 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”.
• Will does not interfere in the power of enjoyment of the property by
the testator, including the power to dispose it.
 Essentials of a valid Will
• Competency of the testator
• Competency of the legatee
• Valid subject matter of bequest
• Bequest to be within permissible limits
Formalities of a Will
• No specific formalities
• No format is prescribed
• It can be oral or written
• If written, need not be signed
• Does not require attestation or registration
• Instructions written by testator in a letter is sufficient
• A written Will is called WASIYATNAMA
• Must display bona fide intention
• In case of oral Will, intention must be ascertained without ambiguity
 Subject matter of a Will
• He must own the property at the time of his death.
• The property must be transferable.
• Conditional Will, Contingent Will, Alternative Bequest

Bequest to be within permissible limits

• With respect to the extent of the property that can be bequeathed
• With respect to the legatees to whom the property is given

Competency of the testator

Sound Mind
Major -18 years/21 Years
Will of a person who later commits suicide. (Shia- Invalid, Sunni- Valid)

Competency of the legatee

Age, Sex, Religion not relevant criterions.
Must be a juristic person
Unborn child can be a legatee
Legatee guilty of causing death of testator is disqualified
 Object of Will Under Muslim Law
• Wills are declared as lawful in Quran.

• Under ML there is permissibility of making a Will to the extend of 1/3 rd property only.

• This restriction is not found in the Quran. It is found in the Hadis of the Prophet

• Two fold object:

1) Prevents a person from interfering and defeating the claim of lawful heirs.

2) It empowers the testator to settle just claims of people, at his pleasure, who might not
figure in the “heirs” category”
 Exception to the 1/3rd Rule
• When testator does not have an heir, he may make a bequest of his
total property
• When heirs themselves consent to the bequest in excess of 1/3rd
property.
Revocation of a will
• Will can be revoked in the following ways:
• 1) Formal cancellation
• 2) Destruction of will
• 3) By executing of another will by testator
• 4) Transferring of property to a third party will render the Will
meaningless
• 5) Will executed by a person will also be revoked if he loses his sanity
and becomes unsound mind subsequent to its execution
 ISA, 1925 vs. Muslim Law
• When Muslim marries under SMA to a Muslim or a non Muslim they will be
governed by the ISA, 1925
• If the marriage is registered immediately or subsequently under the SMA, then
also ISA will govern the modes of succession and not Muslim Law
• Even if Will is made before they get marriage registered under SMA, it will be
subjected to the rules of the ISA, 1925
• Main difference between ISA and Muslim law regarding rules of disposition of
the property by a Will is that, under ML a person can only dispose off 1/3 rd of
his property. Under ISA he can dispose off 100% of his property
• Under ML there are restrictions on the powers of a testator if he wants to
make a bequest in favour of an heir. ISA testator has complete freedom
 Limitation on Testamentary Powers
• Restrictions with respect to legatees
• Restrictions with respect to the extent of property that can be
bequeathed
Difference between Shia and Sunni Law
 Continued..

Rateable distribution

This rule of abatement is followed in under Sunni law.

If a Sunni Muslim bequeaths his property in a certain ratio which the limit of one-third, then the abatement is done
in the same ratio in which the property was distributed.

Preferential distribution

• No reduction Will be done in the shares of the legatees, instead the share Will be given on the preference basis.
• The preference is decided by the order in which the name of the legatees is mentioned under the Will.
• As soon as one-third of the property is finished, the distribution comes to its end.
• A legatee Will get his full share or he Will get nothing