Author: Smrithi V S
Trinity Institute of Professional Studies
Introduction
A Will or a Testament is basically an instrument through which a person makes the disposition of the property which comes into effect after the death of the person[1]. Will which is executed by a Muslim is called Wasiyat. As per the point of view of the Mussalamn a Will is considered as a divine instrument which is regulated by Koran. Tyabji[2] the first Indian barrister in the High court of Bombay according to him a will is the conferment of the right of the property in advantage or profit-sharing which is applicable after the death of the testator .Testator or legator is the person who makes the will and the person for whom the will is made is called the lagatee. The entire property in Muslim law can only be disposed of by the gift Inter vivo. The testamentary power is limited to one-third of the total property. Prophet has proclaimed that such a power should not be used in order to cause injury to the lawful heirs. All faculties of Muslim law, except the Ithana Ashari school maintain that the bequest of extra than the bequeathable one-third is invalid unless consented through the heirs after the loss of life of the testator. The consent can be inferred from the conduct[3].
According to Section 2(h) of the Indian Succession Act 1925[4], a will is a legal announcement showing the intention of the testator in order to dispose of his property which comes into effect after the death of the legator /testator. One of the discerning features of Will is that it is revocable till the time the person is alive. The beneficiary or legatee cannot interfere in legator’s power of enjoyment including the transfer or disposition of the property in such a case the will becomes revoked.
Essentials for a valid will[5]
There are certain per requisites which are required to make a valid Will/Wasiyat.
1. Qualification for the valid will
2. Subject matter of a will
3. Formalities for making a valid will
4. Testamentary Rights of testator
1. Qualification for the valid will
(a) Capacity of the testator[6]
The legators have to have the subsequent qualifications are capable of making the valid will.
· The legator ought to be a Muslim.
· The individual can be both married and unmarried.
· The legator may be either male or woman.
· The man or woman ought to have attained the age of majority and they are required to give free consent.
· He needs to be a person of sound mind.
· The minor cannot make a valid will however the will made by the minor can be ratified by using him on achieving the age of majority.
(b) Capacity of the legatee[7]
The legatee requires the following qualification with a view of taking a legitimate will.
· A legatee can be female or male.
· That person can be either married or single.
· A legatee may be either major or minor.
· The legatee may be Muslim or Non-Muslim. For Non-Muslim the property will be subjected to the personal laws of the legatee.
· The person can be insane.
· The consent of the legatee is vital. After the demise of the testator the legatee ought to give his/her consent for taking the property.
2 Subject matter of a will
The subject matter of the will depends on the choice one makes it can be both corporeal or incorporeal property. The corporeal property are tangible that is they can be seen and touch is called corporeal property and incorporeal property are intangible. It isn't always important to rely on the need of the property be at life of the testator, but gift can be made at the time of the death of the testator.
3 Formalities for making a valid will
The Muslim law does not provide any specific formality that is required for making a valid will. One of the only requirements is the manifestation showing the intention of the testator or legator. Intention essentially implies that after the death of the testator ownership confers to the legatee. There are certain general formalities required to make a valid will.
Formalities under Muslim Law
(a) Oral
An easy oral announcement is likewise regarded as the legitimate will. It isn't always important to follow certain procedure to make a legitimate will.
(b) Will in writing
There is no such requirement for making any written will. If the will is in writing then no specific form is required. It doesn’t require the signature of the testator or attestation by way of a distinctive feature.
(c) The will made by signs
As in keeping with Muslim regulation, it permits the individual to make the legitimate will by means of signs and gestures but there is only one requirement is that the person is unable to speak and write.
(d) Clear intention
In both the cases if the desire is written or oral or by way of gesture the goals of the testator should be clear and unequivocal, the will can be only valid if the intention of the testator can be certain.
(e) Acceptance by legatee
The acceptance by the legatee it necessary it can be either implied or expressed consent for making of a valid will and that is required to be made after the death of the testator.
4. Testamentary Rights of testator
The testator can make a will of any assets if the belongings owned by means of the testator at the time of his demise and the nature of the assets is transferable[8].
There are few limitations on the testator strength.
Firstly there are certain limitations on bequest to heirs. A Muslim does no longer possess a vast power of making the disposition by way of will. If a person has an inheritor rights then he can bequest his entire property and there is a restriction of giving only one-third of his assets. But if he offers his belongings to the stranger or non-heir then the consent of the previous heirs is necessary and there is no such limitation on the bequeathable property
Position of consent of the testator’s heirs
· The consent of the heir is required to be obtained after the death of the testator
· The consent which is given during the lifetime of the testator is no consent.
· Once the consent is given it cannot be revoked
· The consent can be either expressed or implied.
· Consent of the testator’s heirs is required when the bequest to the stranger exceeds the limit of one third of the total property irrespective of whether the person is Shia or Sunni.
· When the testator is Shia and the bequest is made to the stranger to the heir of the property to 1/3 only then the consent of the testator is of no requirement.
Revocation of the will
A testator may revoke his will or any part of it at any point of time either expressly or impliedly and the testator is free to make any rectification to his Will. A will may be expressly revoked by tearing it off or by burning it. Any inconsistency with the bequest will make the will revoked. If any act done results in the extinction of the right to property or the subject matter to the bequest will impliedly revoke the Will.
Conclusion
The Muslim law of will allows the individual to transfer his property to the person of his choice. In Will the rights of the property are transferred after the death of the testator. In respect of Will the actual physical delivery of the property is not necessary and it can be revoked by making another Will. Will gives individual the right to revoke the property whenever the person wants and till the time he is alive and he will remain the true owner of the property. It even gives the liberty to an individual to bequest his/her property to an unborn child as well. It empowers even those people who are excluded from inheriting the property. A valid will maintains the balance between the devolution of the property and law of inheritance under Islamic law.