WILL (WASIYAT)

This law enunciated herein afterwards does not apply to Muslim whose marriage is performed
and registered under the Special Marriages Act, 1954. In such a case the provisions of the
Indian Succession Act, 1925, will apply.

1. Nature, object and meaning of will.

Will is the Anglo-Mohammedan term for its Arabic equivalent wasiyat. Generally wasiyat
means 'will' but it has also other meanings. It may signify a moral exhortation, specific legacy
or the capacity of the executor, executorship. A document embodying the will is called
wasiyatnama.

A will has been defined as "an instrument by which a person makes disposition of his
property to take effect after his death, and which is in its own nature, ambulatory and
revocable during his life.

Tyabji defines will as "Conferment of right of property in a specific thing or in a profit or

advantage or in a gratuity to take effect on the death of the Testator".

According to Section 2(h) of Indian Succession Act, 1925, "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". From this definition we get the following elements of will:
1. Will is a conferment of right to one's property on another.
2. 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 a right of
property. The second element of the definition connotes the most important characteristic of a
will and that is that the right conferred in the property is to take effect after the death of the
maker of the will, i.e., testator.

A will from the Musalman's point of view is a divine institution, since its exercise is
regulated by Quran. It offers to the testator the means of correcting to a certain extent the law
of succession, and of enabling some of those 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 has declared that the
power should not be exercised to the injury of the lawful heirs.

The exercise of testamentary powers is restricted to a one- third of the estate in the Muslim
system so as not to deprive the lawful heirs of their just claims.
2. Origin of the law of will.
The object of wills according to tradition of the Prophet is to provide for the 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 lays down that it is ethically incumbent upon a Muslim to
make arrangement 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 one third 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 one third of his estate, from interfering by will with the
course of the devolution of property according to the laws of inheritance. It is uncertain how limit of
one-third was fixed.

3. No formality required
General rule- As a general rule no formality is required 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 particular form of words is
required, so long as the intention of the testator is clear.

By the Muslim Law no writing is necessary to make a will valid, and no particular form,
even verbal declaration is not necessary as long as the intention of the testator is sufficiently
ascertained. In Mazhar Husain v. Bodha Bibi the Privy Council held that a letter written by a testator
shortly before his death and containing directions as to the disposition of his property constituted a
valid will. A Muslim will though in writing, does not require to be signed, nor, even if signed, does
require attestation. Even probate is not necessary.

The burden of establishing an oral will be 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
must ensure that it knows what the speaker said and must from the circumstances and from the
statement be able to infer for itself that testamentary effect was intended, in addition to being satisfied
of the contents of the direction given.
Muslim Law of will and the Indian Succession Act, 1925-The provisions of Indian Succession 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 Succession 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.

4. Requisites of a valid will- The essential requisites of a valid will, under Mohammedan Law are as
follows:
1. The testator must be competent to make the will.
2. The legatee must be competent to take the legacy or bequest.
3. The subject of bequest must be a valid one.
4. The bequest must be within the limits imposed on the testamentary power of a
Muslim

A. Testator and his competence.

Every adult Muslim of sound mind can make a will. Thus, a minor and a lunatic are not competent to
execute a will. A minor is incompetent to make a will but when a will made by a minor it may
subsequently be validated by his ratification on attaining majority.

In Abdul Manan Khan Murtaza Khan (1991) Patna High Court held that any Mohammedan having
sound mind and not a minor, may make a valid 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.

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, become invalid,
if the testator is permanently disabled by unsoundness of mind.

Who is a minor? The question, as to who is a minor, may be discussed from two angles, i.e., (i) who is
minor according to Muslim Law, and (ii) who is a minor according to the Indian Majority Act.
According to the 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 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 committing suicide. -Under Sunni Law, the will of a person committing suicide is
valid. 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 the doing of any act towards the commission of
suicide, it is valid. In a case where the deceased first made his will and afterwards took poison, it was
held that the will was valid.

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.

There is conflict of opinion as to the validity of will made by a Muslim who renounces Islam
afterwards. The Maliki school holds that apostasy annuls such a will, but according to the Hanafis, the
bequest will be effective, if it is lawful cording to the sect from which he has apostatized.

B. Legatee and his competence.

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

(a) Bequest to an institution. -A bequest may be validly made for the benefit of an institution.

(b) Bequest to a non-Muslim. -A bequest in favour of a non-Muslim is valid.

(c) 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. According to Shia Law, it is invalid if it is caused intentionally and not if accidentally or
unintentionally.

(d) Bequest to an unborn person. - A child who is born within six months of the date of making the will
is treated as a legatée 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.

(e) 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 right of the legators to make a will depriving the right 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 legator
and his heirs.
C. Subject of will and its validity.
The following are the requisites of a valid will:
(i) the property must be capable of being transferred;
(ii) 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;
(iii) the testator must be the owner of the property to be disposed by will.

Bequest in future. -A bequest cannot be made of anything to be performed or produced in future.

Alternative bequest. -An alternative bequest of property, i.e., to one or failing him to the other person is
valid. The bequest to the first 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 first person predeceases, the testator, the second
person will take the bequest.

Contingent bequests. -Bequest of a property which is conditional to take effect on the happening or not
happening of an uncertain event is void.

Conditional bequest. A bequest with a condition which derogates from its completeness will take effect
as if no condition was attached to it, i.e., the request will be valid while the condition will be void.

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 A absolutely and B takes nothing under it. Thus, a bequest of life estate is not recognised under
Mohammedan Law.

Suppose a grant is made to X for his life and it is stipulated that the property after his death will go to
Y. Under Sunni Law, it is an absolute bequest to X and Y would get nothing but under Shia Law, the
will take full effect. In such a case, what X gets is known as life-estates and what Y gets is called
vested remainder. It is remainder in the sense that Y gets what remains after X and it is ‘vested’ in the
sense that the right of Y is settled from the time the grant of X is created. The prior view of the
Bombay High Court was in favour of the recognition of a life-estate, but the subsequent decisions laid
down that life-estate and vested remainder are as much unknown to the Shia Law as to the Sunni Law.
This question was left undecided in a case by the Judicial Committee. The view of Oudh Chief Court
was that the creation of a life-estate and a vested remainder would be permissible under the Shia Law.

D. Testamentary power and its limits

The testamentary capacity of a Muslim is limited. He does not possess 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.

(i) Limitation as regards the person. The general rule, in this regard has been very clearly laid down in
Ghulam Mohammed v. Ghulam Hussain. It was held in this case that a bequest in favour of an
heir is not valid unless the other heirs consent to the bequest after the death of the testator.
In Fukan v. Mst. Mumtaz Begum, where the plaintiff respondent Mumtaz Begum filed a suit for
possession alleging that the land in dispute was given to her by her father under a will and she was
forcibly dispossessed by the defendant (Appellant) who denied the execution of the will and pleaded
that he had been in possession after the death of Mehrab Khan (father of Mumtaz Begum) as his heir as
being the son of his brother Irfan Khan, the Rajasthan High Court had confirmed the well-settled
principle that a bequest in favour of an heir, even to the extent of one-third 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 Khan, the 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 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.

Whether a person is an heir or not, will be determined at the time of the testator's death because a
person who is an heir at the time of making the will may not remain an heir at the time of testator's
death and vice-versa.

For example, A, by his will bequeaths certain property to his brother. The only relatives of the testator
living at the time of the will are a daughter and the brother. After the date of making the will a son is
born to A. The son, the daughter and the brother all survive the testator. The bequest to the brother is
valid, for though the brother was an expectant heir at the time of the will, he is not an heir at the date of
the death of the testator, for he is excluded from inheritance by the son. If the brother and the daughters
had been the sole surviving relatives, the brother would have been one of the heirs, in which case the
bequest to him could not have taken effect, unless the daughters assented to it.

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 one-third of his estate. Such a legacy is valid without the consent of
the other heirs. But if the legacy exceeds one-third 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.

(ii) Limitation as regards 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 one-third of his net
assets after payment of funeral charges and debts. In proof of this the following tradition is
quoted, as delivered by Saad ibn Abi Waqqas:
“In the year of the conquest of Mecca, being taken so extremely ill that my life was despaired of, the
Prophet of God came to pay me a visit of consolation. I told him that by the blessing of God, having a
great estate, but no heirs, except one daughter, I wished to know if I might dispose of it all by Will." He
replied, 'No' and when I severally interrogated him ‘if I might leave TWO THIRDS or ONE HALF', he
also replied in the negative, but when I asked 'if I might leave a THIRD, he answered, 'Yes' you may
leave a THIRD of your property by will, but a third part, to be disposed of by will, is a great portion;
and it is better you should leave your heirs rich, than in a state of poverty, which might oblige them to
beg of others.'
This may be clear by an illustration: A, a Muslim, dies leaving behind him property of Rs. 4,000. His
funeral charges are Rs. 100, and his debts Rs. 900. The rest money is Rs. 3,000 and 1/3 of it is Rs.
1,000. Thus 1/3, ie, Rs. 1,000 may be the subject of will. Thus, a Muslim has no right to bequeath more
than one- third of his properly; the remaining two-thirds must pass to the heirs of the testator according
to law.
Exception to the general rule. -The following are two exceptions to the above-mentioned general rule:
(a) Under Hanafi law, a bequest or more than one-third 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

(b)The above rule of bequeathable one-third 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 Muslims Guru-Chela System was prevalent. As per their
custom a Muslim could not have willed more than 1/3rd of his property without 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 outside the community a custom limiting the choice of a person in whose favour the
will is to be executed would not be contrary to this law. The Court held such custom does not
violate the aforesaid law. It only limits the choice of legatee without effecting the right to execute
the will. Justice Gulab Gupta said that such a custom was not either against public policy or the
Muslim Law.
 5. Doctrine of Consent.
Introduction. -According to the exceptions to the above-noted general rules a bequest of more than
1/3rd 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 the Sunni and the Shia
Schools as to the consent of the heirs if the bequeathed property exceeds one third of the estate. Certain
rules have been laid down as to how and when this consent may be given. Whether it can be
withdrawn or not, what will be the effect if only some of the heirs give their consent, etc. These are:

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 a free consent. A consent given under undue influence, fraud, coercion or
misrepresentations 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 legatees 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 death of testator. - 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 1/3rd of the properties is sought
to be bequeathed to an outsider and to any extent to an heir.

Consent of 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.

6. Revocation of will. - Mohammedan Law confers on a testator unfettered right to revoke his will.
He may revoke it at any time. The revocation may be either (i) express, or (ii) implied.
Express revocation. An express revocation may be either oral or written, e.g, A makes a testamentary
disposition of land in favour of B. At any time after making the disposition, 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
transfers 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.

7. General principles

Rateable abatement. -By rateable abatement is meant "proportionate reduction." Where a bequest of
more than one-third 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 one third or in other
words, the bequest abates rateably.
Bequests for the purposes of rateable abatement are divided into bequests for pious purposes and
bequests for secular purposes. As a general class, bequests for pious purposes are decreased
proportionately to bequests for secular purposes, and do not have precedence over them.
But bequests for pious purposes fall under three classes:
(1) Bequests for faraiz, that is, purposes expressly ordained in the Quran, namely: haji (pilgrimage),
Zakat (poor rate), and expiation for prayers missed by a Muslim. These are obligatory for
Muslims.
(2) Bequests for wajibat, that is, 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.
(3) Bequests for nawafil, that is, bequests of a purely voluntary nature,
e.g. bequests to the poor, or for building a mosque, or a bridge, or an inn for travellers of these
three classes bequests of the first class take precedence over bequests 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, suppose a Hanafi testator leaves Rs. 3,000/ jointly to A and B and Rs. 3,000/- for
pious purposes designated by him. The bequeathable third amounts Rs. 4,000/-; hence Rs. 2,000/-
will be allotted to the secular bequest and Rs. 2,000/- to the pious ones. Out of the sum of Rs.
2,000/-. A and B will each receive Rs. 1,000/-.
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 bequeathable third is exhausted; and for the
purposes 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 instance, if a testator leaves 1/3 of his estate to A, 1/4 to B and 1/6 to C and the heirs do not
consent to these bequests. A take 1/3 of the estate and B and C will take nothing, but if instead of
1/3, 1/12 had been left to A, then A would have taken 1/12 and B 1/4, 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 of his estate to two
different persons in the same will, the later bequest prevails. For instance, a testator by will gives
1/3 of his estate to Salim and later he says that 1/3 be given to Alim, here Alim gets 1/3 to the
exclusion of Salim.

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 5/6 of his estate and if a woman to
bequeath 2/3 of her estate.

Lapsing of legacy. - 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.

Testamentary disposition of more than one third of the property-Its consequences. - Where the
testator has disposed of more than one third of the property by way of will the will is not void. It is
only invalid. Such a will can be legalised after obtaining the consent of the heirs. The heirs may
give their consent expressly or impliedly. Under Hanafi Law the consent of the heirs 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 legator is competent to make a will in respect of any particular heir.

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

8. Distinction between will and gift.

Both will and gift are modes of transferring property from the person making the gift or will to the
person in whose favour it is made. The main point of distinction between the two is that while
'gift' is a transfer of property made immediately 'will' is a "transfer of property to take effect after
the death of the testator". This warrants another difference between the two. One is a transfer inter
vivos, the other is testamentary. Gift being an immediate transfer, delivery of possession is
essential for it. A disposition by will takes effect after the death of the testator and hence no such
delivery of possession is required in it. Furthermore, the subject-matter of gift must be in existence
at the time of making the gift. This is not a requisite to the validity of a bequest (a disposition by
will), it is sufficient if the subject exists at the time of testator's death. The right of donor, to gift
his property, as a general rule is unrestricted (except gift during death-illness) while the right of a
person making a bequest is limited in two ways.

9. Difference between Shia and Sunni Law:

Sunni Law: Bequest of any portion to an heir without the consent of other heirs is invalid.
Shia Law: A bequest to the extent of 1/3rd can be made to an heir without the consent of other
heirs.

Sunni Law: A bequest to a child in womb is valid if born within 6 months.

Shia Law: It is valid even if born in the longest period of gestation, i.e., 10 months.

Sunni Law: A legatee who causes death even by accident is disentitled.

Shia Law: Only intentional murder disentitles a legatee.

Sunni Law: Heir’s consent should be given after the death of testator.
Shia Law: Heir’s consent may be given before or after the death.

Sunni Law: Recognition of rateable distribution.

Shia Law: Rateable distribution is not recognised under Shia Law.

Sunni Law: A will of a person committing suicide is valid.

Shia Law: It is valid only when the will is made before taking any step towards the act of suicide.

Sunni Law: If the legatee does not survive the testator, the legacy lapses and reverts to the testator.
Shia Law: 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.

Sunni Law: Acceptance of the legacy before the testator’s death is of no effect.
Shia Law: Acceptance of the legacy during the testator’s life time is lawful.