CHANAKYA NATIONAL LAW, UNIVERSITY

Family law - II

Topic: The Role of Consent in Wasiyat ( Wills in Muslim law)

Submitted to- Submitted by-

Dr. Ravi Ranjan Sonal
Faculty of Family law II 2nd Year (B.A LLB)
131173

Table of Content
 The Role of Consent in Wasiyat

Acknowledgement
Research Methodology
Aims and Objective
Hypothesis
Introduction
The importance of the Islamic will.
Essentials of a will
The will (Al wasiyya)
The testator (Al- musi)
The Legatee (Al- musalahu)
Executor of the will (Al wasi Al- muktar )
Exception to the General rule
Bibliography

ACKNOWLEDGEMENT

Making a project is one of the most significant academic challenges I have ever faced. Any
attempt at any level can't be satisfactorily completed without the support and guidance of
learned people. I am overwhelmed with my gratitude to acknowledge all those who have

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 The Role of Consent in Wasiyat

helped me put these ideas, well above the level of simplicity and into something concrete
effectively and moreover on time.

I am very thankful to my subject teacher Dr. Ravi Ranjan for his valuable help. He was
always there to show me the right track whenever I needed his help. He lent his valuable
suggestions, guidance and encouragement, on different matters pertaining to the topic. He has
been very kind and patient while suggesting me the outlines of this project and clearing my
doubts. I thank him for his overall support without which I would not have been able to
complete this project. I would also like to thank my colleagues, who often helped and gave
me support at critical junctures, during the making of this project. Last but not the least, I
would like to thank my family members for their emotional support.

Research Methodology
The researcher has used doctrinal method of research for the project. The source
of research are all secondary in nature.

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 The Role of Consent in Wasiyat

Aims and Objective

The study about the role of consent in wasiyat.
To know whether such consent can be written or oral.

Hypothesis
Under the Shia law, the testator may leave 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.

Introduction
Will is the anglo-mohammedan term for its Arabic equivalent Wasiyat.
Generally,wasiyat means will but it has also other meanings. Will means the legal
declaration of the intention of a testator with respect to his property, which he desires to take
effect after his death. It may signify a moral exhortation, specific legacy or the capacity of the

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executor, executorships. The Islamic will is also called al-wasiyya. A will is a transaction
which comes into operation after the testators death. The will is executed after payment of
funeral expenses and any outstanding debts. The one who makes a will (wasiyya) is called a
testator (al-musi). The one on whose behalf a will is made is generally referred to as a legatee
(al-musalahu). Technically speaking the term "testatee" is perhaps a more accurate translation
of al-musalahu.

From this definition we get the following elements of will:

1. Will is a conferment of right to ones property on another.
2. This conferment of right is to take effect after the death of the testator.

The importance of the 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)
The will gives the testator an opportunity to help someone (e.g. a relative need such as an
orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will
can be used to clarify the nature of joint accounts, those living in commensality, appointment
of guardian for ones children and so on. In countries where the intestate succession law is
different from Islamic law it becomes absolutely necessary to write a will.

Essentials of a will - The following are the essentials of a will.

Legal declaration by the executants
The declaration by the executants of the will, must be legal viz. should be in conformity with
the provisions of the Indian Succession Act, 1925 and must be by a person competent to
make it.

Competency of person to make the will

Every person of sound mind not being a minor can execute a will. Persons who are deaf,
dumb or blind are not incapacitated for making a will, if they are able to know what they do
by it. A person who is ordinarily insane may make a will during an interval in which he is of
sound mind. No person can make a will, while he is in such a state of mind, whether arising
from intoxication or from illness or from any other cause that he does not know what he is
doing. The testator should be capable of sound and disposing mind and memory.

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The declaration should be relating to the testator's property and the testator should intend to
dispose off his property after his death. If the declaration is not to take effect or if the testator
wanted to carry out the intention made in the declaration immediately, the instrument will not
be a will, the will should be revocable during the lifetime of the testator. If the instrument is
intended to come into effect with immediate effect and to be final and irrevocable, it will not
be a will.

Law relating to wills

The will made by any Hindu, Buddhist, Sikh or Jain is governed by the provisions of Chapter
VI of Indian Succession Act, 1925. However, the provisions of the Indian Succession Act,
1925 are not applicable to Mohammadans, who can dispose off the property by a will in
accordance with the Muslim Law. Under Muslim Law, the will executed by a Mohammadan
is not required to be probated.

Execution of will
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or
an airman so employed or engaged, or a mariner at sea, shall execute his will according to the
rules.

Signature of the testator on the will

The testator shall sign or shall affix his mark to the will or it shall be signed by some other
person in his presence and by his direction. The will should be dated.

Attestation
'The will shall be attested by two or more witnesses. The attestation by the witnesses should
be by the signatures of the witnesses and not by their mark and the attestation should be done
after the testator has executed the will and not before. The attesting witnesses need not know
the contents of the will and the testator need not disclose the nature or contents of the
document.

Property, which can be, disposed off by Will

Any movable or immovable property can be disposed off by a will by its owner. Under
Mitakshara Law, a Hindu coparcener could not dispose off his undivided coparcenary
property by will, even if other coparceners consented to it.

But section 30 of Hindu Succession Act, 1956 provides that any Hindu may dispose off by
will or other testamentary disposition any property, which is capable of being so, disposed of
by him in accordance with law. The interest of a male Hindu in a Mitakshara coparcenary
property is deemed to be property capable of being disposed off by him.

Who can be a devisee under a will

Any person capable of holding property can be a devisee under a will and therefore a minor,
lunatic, a corporation, a Hindu deity and other juristic person can be a devisee. Sections 112

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to 117 of Indian Succession Act, 1925 put some restrictions on the disposition of property by
will in certain cases. Dispositions of property by will in some cases have been declared void.

Wills by Muslim
Under Muslim Law, every adult Muslim of sound mind can make a will. A minor or a lunatic
is not competent to execute a will. Though under Muslim Law, a person gets the majority at
the age of 15 years, but in India, the case of will is governed by the Indian Majority Act
according to which the minority terminates at the age of 18 years, but if the guardian has been
appointed by the Court for the minor, the minority will terminate at the age of 21 years. The
legatee can be any person capable of holding property and bequest can be made to non-
Muslim, institution, and charitable purposes. A bequest can be made to an unborn person and
a will in favour of a child who is born within six months of the date of making the will can be
a legatee. But according to Shia Law, a bequest to a child in the womb is valid, even if the
child is in the longest period of gestation i.e., ten lunar months. The property bequeathed
must be capable of being transferred and the testator should be the owner of the said property.
The property bequeathed should be in existence at the time of death of the testator, even if it
was not in existence at the time of execution of the will. A Muslim cannot bequest his
property in favour of his own heir, unless the other heirs consent to the bequest after the death
of the testator. The person should be legal heir at the time of the death of the testator.
However, under Shia Law, a testator may bequest in favour of his heir so long as it does not
exceed one third of his estate and such bequest is valid even without the consent of other
heirs. The consent can be given before or after the death of the testator. But if the entire estate
is bequeathed to one heir excluding other heirs entirely from inheritance, the bequest will be
void in its entirety. According to Sunni Law, the consent by the heirs should be given after the
death of the testator and the consent given during the lifetime of the testator is of no legal
effect. Under Shia Law, the consent by the heirs should be free and a consent given under
undue influence fraud, coercion or misrepresentation is no consent and the person who has
given such consent is not bound by such consent. The consent by the heirs can be given either
expressly or impliedly. If the heirs attest the will and acquiesce in the legatee taking
possession of the property bequeathed, this is considered as sufficient consent. If the heirs do
not question the will for a very long time and the legatees take and enjoy the property, the
conduct of heirs will amount to consent. If some heirs give their consent, the shares of the
consenting heirs will be bound and the legacy in excess is payable out of the shares of the
consenting heirs. When the heir gives his consent to the bequest, he cannot rescind it later on.
Principle of rate able abatement in case heirs does not give consent.
Under Hanafi Law, if a Mohammedan bequest of more than one? Third of the property and
the heirs does not consent to the same, the shares are reduced proportionately to bring it down
to one? Third. Bequests for pious purposes have no precedence over secular purposes, and are
decreased proportionately. Bequests for pious purposes are classified into three categories:
1) Bequest for faraiz i.e. purposes expressly ordained in the Koran viz. hajj, zakat and
expiation for prayers missed by a Muslim.
2) Bequest for waji-bait i.e. purposes not expressly ordained in the Koran, but which are
proper viz. charity given for breaking rozas.

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3) Bequest for nawafali i.e. purposes-deemed pious by the testator, viz. bequest for
constructing a mosque, inn for travellers or bequest to poor. The bequests of the first category
take precedence over bequests of the second and the third category and bequests of the
second category take precedence over those of the third. Under Shia Law, the principle of
rate able abatement is not applicable and the bequests made prior in date take priority over
those later in date. But if the bequest is made by the same will, the latter bequest would be a
revocation of an earlier bequest.

No writing necessary
Under Muslim law, a will may be made either orally or in writing and though in writing, it
does not require to be signed or attested. No particular form is necessary for making a will, if
the intention of the testator is sufficiently ascertained. Though oral will is possible, the
burden to establish an oral will is very heavy and the will should be proved by the person
who asserts it with utmost precision and with every circumstance considering time and place.
But if the marriage of a Muslim has been held under Special Marriage Act, 1954, the
provisions of Indian Succession Act, 1925 shall be applicable and he cannot execute a will
under Muslim law.

Revocation of will by a Muslim

The testator may revoke his will at any time either expressly or impliedly. The express
revocation may be either oral or in writing. The will can be revoked impliedly by testator
transferring or destroying completely altering the subject matter of the will or by giving the
same property to someone else by another will.

Registration of Wills
Though it is not necessary to register a will, but the Law recognizes a Registered will when
the execution of a will is disputed and when there is an unregistered will. The provisions
relating to registration of the will have been given in sections 40 and 41 of the Indian
Registration Act. The testator, after his death, or any person claiming as executor or otherwise
under a will, may present it to any Registrar or Sub Registrar for registration. No time limit
has been prescribed for registering the will and a will may be presented for registration at any
time.' A will presented for registration by the testator may be registered in the same manner as
any other document. A will presented for registration by any other person entitled to present it
shall be registered, if the registering officer is satisfied
a) that the will or authority was executed by the testator;
b) that the testator is dead; and
c) that the person presenting the will is entitled to present the same.

The registration of will is not the proof of the testamentary capacity of the testator, as the
Registrar is not required to make an enquiry about the capacity of the testator except in case
the testator appears to him to be a minor or an idiot or lunatic.

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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.

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.

The Will (Al-wasiyya)

The Islamic will includes bequests and legacies, instructions and admonishments, and
assignments of rights.
No specific wording is necessary for making a will. In Islamic law the will (wasiyya) can be
oral or written, and the intention of the testator must be clear that the wasiyya is to be
executed after his death. any expression which signifies the intention of the testator is
sufficient for the purpose of constituting a bequest.
There should be two witnesses to the declaration of the wasiyya. A written wasiyya where
there are no witnesses to an oral declaration is valid if it written in the known
handwriting/signature of the testator according to Maliki and Hanbalifiqh.
The wasiyya is executed after payment of debts and funeral expenses. the majority view is
that debts to Allah (SWT) such as zakh, obligatory expiation etc. should be paid whether
mentioned in the will or not. However, there is difference of opinion on this matter amongst
the Muslim jurists.

The Testator (Al-musi)

Every adult Muslim with reasoning ability has the legal capacity to make a will. An adult for
this purpose is someone who has reached puberty. Evidence of puberty is menstruation in
girls and night pollution (wet dreams) in boys. In the absence of evidence, puberty is
presumed at the completion of the age of fifteen years. The Maliki and Hanbalifiqh also
consider the will of a discerning (tamyiz) child as valid.
Under English Law you must be at least 18 years of age to make a valid will (similarly in
most of the United States of America) unless you are military personnel in which case you
may make a valid will at the age of 17.
The testator must have the legal capacity to dispose of whatever he bequests in his will. When
making a will the testator must be of sane mind, he must not be under any compulsion and he
must understand the nature and effect of his testamentary act. The testator must of course
own whatever he bequests.

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The testator has the right to revoke his will by a subsequent will, actually or by implication.
In traditional Sunni Islamic law the power of the testator is limited in two ways:
Firstly, he cannot bequest more than 1/3 of his net estate unless the other heirs
consent to the bequest or there are no legal heirs at all or the only legal heir is the
spouse who gets his/her legal share and the residue can be bequeathed.
Narrated Sad ibn Abi Waqqas (RA): "I was stricken by an ailment that led me to the verge of
death. The Prophet came to pay me a visit. I said, "O Allah's Apostle! I have much property
and no heir except my single daughter. Shall I give two-thirds of my property in charity?" He
said, "No." I said, "Half of it?" He said, "No." I said, "One-third of it?" He said, "You may do
so, though one-third is also too much, for it is better for you to leave your offspring wealthy
than to leave them poor, asking others for help..." (Sahih al-Bukhari, Sahah Muslim,
Muwatta, Tirmidhi, Abu Dawud and Ibn Majah.)
Secondly, the testator cannot make a bequest in favour of a legal heir under
traditional Sunni Muslim law. However, some Islamic countries do allow a bequest in
favour of a legal heir providing the bequest does not exceed the bequeathable one-
third.
Legal heir in this context is one who is a legal heir at the time of death of the testator.
Narrated Abu Hurayrah (RA): Allahs Prophet (SAWS) said, "Allah has appointed for
everyone who has a right what is due to him, and no bequest must be made to an heir. (Abu
Dawud). Similar hadith narrated by Abu Umamah (RA) and reported by Ibn Majah, Ahmad
and others.

The Legatee (Al-musalahu)

Generally speaking, for a bequest to be valid, a legatee must be in existence at the time of
death of the testator except in the case of a general and continuing legatee such as the poor,
orphans etc.
The legatee must be capable of owning the bequest. any bequest made in favour of any legal
heir already entitled to a share is invalid under traditional Sunni Muslim law unless consented
to by other legal heirs. an acknowledgement of debt in favour of a legal heir is valid.
Acceptance or rejection of a bequest by the legatee is only relevant after the death of the
testator and not before. Generally speaking, once, a legatee has accepted or rejected a bequest
he cannot change his mind subsequently.
If the legatee dies without accepting or rejecting the bequest, the bequest becomes part of the
legatees estate according to the Hanafi fiqh because nonrejection is regarded as acceptance.
According to the other three main Sunni madhahib, the right to accept or reject the bequest
passes onto the heirs of the legatee.
There is difference of opinion as to the time at which ownership of a bequest is transferred
from the testator (or his heirs) to the legatee. According to the Hanafi and Shafei the transfer

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of ownership is at the time of death of the testator, according to the Maliki and Hanbalifiqh
the transfer of ownership is at the time of accepting the bequest.
All the Sunni madhahib agree that if the legatee dies before the testator, the bequest is invalid
since a bequest can only be accepted after the death of the testator.
If there is uncertainty as to whether or not the legatee survived the testator, such as a missing
legatee, the bequest is invalid because the legatee must be alive at the time of death of the
testator for the will to be valid.
If the testator and legatee die together, such as in an air crash and it is not certain who died
first, the bequest is invalid according to the Hanafi, Maliki and Shafiifiqh. But according to
the Hanbalifiqh, the bequest devolves upon the legatees heirs who may accept or reject it.

Executor of the will (Al-wasi Al- mukhtar)

The executor (al-wasi) of the will is the manager of the estate appointed by the testator. The
executor has to carry out the wishes of the testator according to Islamic law, to watch the
interests of the children and of the estate. The authority of the executor should be specified.
Hanafi and Maliki fiqh state that the executor should be trustworthy and truthful; the
Shafiifiqh state that the executor must be just. The Hanafi fiqh considers the appointment of a
Non Muslim executor to be valid. The testator may appoint more than one executor, male or
female. The testator should state if each executor can act independently of the other
executor(s).
If one starts acting as an executor, one will be regarded as having accepted the appointment,
both in Islamic and in English law.

Exception to the general rules.-

The following are two exceptions to the above mentioned generals rules:
a) Under Hanafi law, a bequest or more than one-third of the net assets may be valid,
if the heirs, whose rights 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 testators death.
b) The above rule of bequeathe 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.

CONCLUSION
A Muslim may dispose of his entire property by gift inter-vivos. But his testamentary power
is limited to the disposal of only one- third of his property. The reason for bestowing
testamentary power on a Muslim and for its limitation, has been thus stated by M. Sautayra:
A will from the Mussalmans point of view is a divine institution, since its exercise is

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regulated by the Koran. 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. Thus, the Muslim law of
wills is a compromise between two opposite tendencies. It is undesirable for any man to
interfere with the divine the divine law. Secondly, it is considered to be a moral duty of every
Muslim to make arrangements for the distribution of his property (within the specified limit
on one-third) after his death. This seems to be the reasons why the word Wassaya, wassiyyat
has two meanings; it means a will and it also signifies a moral exhortation.

A Muslim is not allowed to bequeath more than a third of his property with a view to not
affecting to bequeath more than a third of his property with a view to not affecting the shares
of those who are enjoined by the Koran to inherit the property of the deceased. He is also not
allowed to bequeath anything to the heirs. It is because he is allowed to bequeath one-third
with a view to fulfilling his duty in respect of those who have served him, who have shown
devotion to him in his last moments, and who get nothing. Both these limitations can be made
nugatory if the heirs consent to the disposition made in violation of these limitations. Under
the Hanafi law, such consent to be valid must be given after the death of the testator.

The will of Muslim is governed by the Muslim law. The provisions of testamentary
succession laid down in the Succession Act, 1925 affect the Muslim wills marginally.

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Bibliography

BOOKS:-
Mohammadan Law, Aqil Ahmad, 25th edition, 2013
Muslim Law, Paras Diwan, 18th edition, 2011
Mohammadan Law, Mohd. Nazmi, 3rd edition 2012
Family Law in India, Dr. S.R.Myneni, 15th edition, 2009

Websites referred:
www.islam101.com
www.legallight.com
www.legalaid.c.a
www.lawyersclubindia.com

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