PROJECT ON- FAMILY LAW

TOPIC- DISPOSITION OF WILL

INTRODUCTION –
Will is a way of disposing or devolution of property by a person under Muslim law. In
Muhammadan law, there are different ways through which a Muslim can make
disposition of his property. A Mussalman can dispose of his property by means of a Will,
or by way of a gift or by waqf. According to his wishes, he can opt any which way. A will
is also called a Testament or a Wasiyat. A will under Muhammadan law is a divine
mandate, its basis and guidelines are drawn from the holy Quran. It is considered as an
opportunity for the testator, to serve the poor by making a funding, or rewarding the
worthy persons or making some provisions for the legal hires. To be precise – It is
considered as an instrument through which a Mussalman makes or sets up an
arrangement for his property and this arrangement comes into effect after the death of
the testator. In a way it could be called as the last desire of that person, as to how he
wants his property to be disposed should be taken care of after his death. The testator
has the power that he can amend or revoke the Wasiyat during his lifetime.

The concept and the nature of the Will –

Section 2 (h) of Indian succession act defines Will as- “ ‘ Will’ means 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”.
The disposition of a property could also be made by making a sale. However, when
a person makes a Will, he can exercise complete control over his property unlike
(gift or sale).
If the person who’s making a Will is a male then he is called a Testator and the word
Testatrix is used for a female who make a Will. A nd the person for whom the Will is
been made i.e., the person who is going to be benefited from the Will is called a
Beneficiary or Legatee.
According to the Prophet, the significance of will is that, it should provide or equip for
the safety and maintenance to the members of the family. Under Muhammadan law, a
person can make a will in favor of anyone but it should not be more than 1/3 rd of his total
property, if it exceeds the set limit i.e., 1/3 rd of his total property than consent of his legal
hires is required to make a valid Will and it’s not of relevance as in whose favor the Will
is made.
Under Muhammadan law, a will could be made for any kind of property i.e., it could be
movable or immovable. Also, for the execution of a Will, there are no specific formalities
specified, since there are no expressed formalities mentioned, it could be made through
an oral or written declaration. The Will could also be made through gestures.
The intention of the legator is considered significant. Such an intention should be clear,
explicit and unequivocal in nature to constitute a valid Will.

Requisites of a valid Will-

These conditions are to be fulfilled for forming a valid Will:

1. Competence of the Legator/Testator- In order to constitute a valid Will, the

competency or capacity of the legator is the foremost requirement.
- The person who is making the Will must be a Muslim.
According to the Islamic law, only a Will made by a Mussalman will be counted as an
authentic and valid Will. The testator must be a Muslim, at the time of the execution of
the Will only then it will be governed by the Muslim personal law.
· There are certain points, which have to be taken into accord: For instance, a
person can be a Muslim either by Birth or by conversion.
So, when a person is a Muslim by birth, then he would ordinarily be governed by the
Muslim personal law. However, if a Muslim man gets married under the Special
Marriage Act, 1954, then the Will made by him will not be regulated by the Muslim
personal law, it will be regulated according to the Indian Succession Act, 1925.
· What will happen to the validity of the Will, if the person renounces Islam?
There may arise a situation, where a Muslim man renounces Islam after the execution
of the Will. In that case the validity of the Will is upheld. Because the person was of an
Islamic faith when the will was executed, but afterwards he becomes a non-Muslim i.e.,
at the time of death.
Since there are two schools of Muslim law i.e., Sunni Muslims and Shia Muslims, the
Will should be governed according to the laws of that particular school to which the
Legator belongs at the time of declaring the Will.

- He must be of sound mind.

The legator must be of sound mind, for a will to be considered valid. According to the
Muslim law, the legator should be sane, not only while making a will but till the time of
execution of the will i.e., till death. A legator should completely understand and have the
knowledge of his actions and omissions and also, the legal consequences of his actions
not only while making the Will but should also be able to sustain it till the execution of
the Will.
If the legator is sane while declaring the Will but subsequently becomes insane and
remains the same till his death then, the Will made by him automatically becomes void.
Same will be the case, when the legator executes a Will while he is insane. Also, if
ultimately, he becomes sane again and remains the same till death then also, the Will
will be considered as null and void.
However, if a person of unsound mind makes a Will during his lucid interval, then the
Will will be considered valid but only if his insanity does not last for more than a period
of Six months.

- Age of Majority.
The age of majority under Muslim law is regulated according to the Indian Majority Act,
1875. However, this criterion of age according to the Indian Majority Act is only
considered for the Wasiyat.
According to the Indian Majority Act, the age of attaining majority is 18. If the courts
have appointed any guardian for the same then the age of majority becomes 21. Any
Will executed by a person in minority will be considered as void. However, it can be
turned into a valid Will. After attaining majority, the legator can ratify the Will and it
would be considered as a valid Will.
- Consent of Legator.
The free consent of the legator is an important requisite to constitute a valid Will. The
free consent of the legator is generally presumed by the law until proven otherwise. Any
will be executed without free consent i.e., under the undue influence, coercion or fraud
will be considered as null and void and the legatee will not be entitled to get anything
under that Will.
2. Competency of the Legatee- The competency of the legatee decides whether
they are competent and capable to take a Will executed by the Legator.
- The legatee must be alive.
A legator’s Will is executed upon his death and for the legatee to get or receive the Will
his existence is the most important and obvious condition. Thus, the legatee has to be
in existence.
Under Muslim law, a Will can be made or declared in the favor of a minor person, a
person of unsound mind, or an even non-Muslim. The state of mind, age, caste, sex,
religion all these are insignificant for a valid execution of a Will and to become a
competent legatee.
Just the existence of the legatee is of significance. A Will can also be made in the favor
of a waqf, or religious institution. They are considered as a competent and lawful
legatee.

- An unborn Child.

A child in a mother’s womb is considered as a living human being and thus, is a

competent legatee. However, According to Muslim law, the unborn child is considered
as a capable legatee only under two conditions:

Firstly, the child must be in the mother’s womb at the time of declaration of the Will i.e.,
the child must be into existence. Secondly, according to Shia law the child must be born
within Ten months and under Sunni law it must be born with Six months from the date of
execution of the Will.

- A person causing death of the legator.

The execution of the Will takes place only after the death of the legator. So, there might
be conspiracy to kill the legator in order to get the property. In such cases the, the
Islamic law talks about two possible theories. A legatee could be killed intentionally or
unintentionally. Whatever the intention is generally the Legatee is prohibited from
getting any property. However, according to the Shia law, if the death of the legator is
caused by the legatee unintentionally or accidentally then in that case he is allowed or
qualified to the take property as per the Will.

- Legatee’s consent.

The consent of the Legatee to accept the Will is as important as the consent of legator
while making the Will. The legatee consent could be in any form i.e., it could be
expressed or implied. A legatee has the full power to disclaim the Will. Thus, if the
legatee refuses to own the property bequeathed to him then the Will executed in his
name will be considered as invalid.

- Joint Legatee

A Will can be made to a single person or to several people. The issued to several
people is known as joint Legatee. A Will can be made in favor of joint legatees in two
ways- when the shares is specified and when the shares are not specified. When the
shares are not specified – If the Will is precisely made and all the shares to all the
legatees are specified, then there arises no confusion regarding the share of the Will.
And the Will is executed and distributed as per the details mentioned in Will. In cases
where the Legator has not specified the shares, the Will is supposed to be divided
equally amongst all the share members.

The Subject matter of a Will.

Under Muslim Law, a Will can be including any type of property. It could be a movable
or immovable property or it could be corporeal or incorporeal. However, the legator can
declare the property under his Will under only two conditions-
1) The legator must own that property at the time of the execution of the Will i.e., at the
time of his death.

2) The property must be transferable.

The property executed under the Will should be in the ownership of the legator at the
time of his death.

Revocation of the Will.

According to the Muslim law, a legator can revoke the Will or a part of the Will executed
by him anytime he wants. In the same way he can also add anything he wants at any
point of time. The revocation of the Will could be made orally, in writing or in expressed
form.

Difference between Shai and Sunni law of Will.

-Bequest to a hire:
Under Sunni law – According to the
Under Shia law - According to the Shia law, a person can bequest up to One-third of his
property without the consent of his hires. However, if the percentage or the share of the
bequest exceeds than One-third in that case he will need the consent from the hires to
bequest the property.
-Bequest to an unborn child:
Under Sunni law - A bequest to an unborn child can be made. The only requirement is
that the child should be in existence i.e., in its mother’s womb and according to Shia law
it must be born with Six months of making the Will.
Under Shia law – According to Shia law, a Will can be made under an unborn child’s
name. The only requirement is that the child must be born within Ten months of making
the Will.
-Consent of the hires for bequeathing to non-hire:
Under Sunni law – The consent of hire is mandatory even if the bequest consist of One-
third of the Will or more. Also, the consent must be obtained after the death of the
testator.
Under Shia law – According to the Shia law, for bequeathing a property up to One-third
of the Will the consent of hires is not necessary but for more than one-third the consent
is must. Also, the consent maybe taken before or after the death of the legator.
-Bequest to murderer:
Under Sunni law – If the legatee causes the death of the legator then the legatee
becomes incapable of receiving the property. Even if the death is caused by an accident
or negligently.
Under Shia law – according to the Shia law, the legatee is competent to receive the
property if the death of the legator is caused by an accident or due to an unintentional
action.

-Bequest in case of suicide:

Under Sunni law - The Will is considered valid and the time of the suicide i.e., whether
before or after the making of the Will is of no relevance.
Under Shia law – According to Shia the, the Will is considered valid only if the legator
commits suicide after the execution of the Will.
-Lapse of the Legacy:
Under Sunni law – If the legatee dies before the testator then the Will lapses and goes
back to the testator.
Under Shia law – If the legatee dies before testator than the Will is favored in the names
of the legatee’s hires. Incase the legatee dies without hires only then the Will will lapse.
-Abatement of legacies:
Under Sunni law – Under Sunni law, the rule of Rateable distribution is followed.
Under Shia law – According to Shia law, the rule of preferential distribution is followed.
Conclusion-
A Will under Muslim law is followed according to the customs and the Muslim personal
law. The concept of Will is embodied very intensively under the Islamic law and is a very
important subject. A Will empowers and maintain the safety of the legator’s successors.
The Will is followed according to the personal law, yet, there are many differences
amongst the Shia and Sunni Muslims in context of the execution of the Will. The thumb
rule of the Will is that it only gets executed after the death of the legator. As discussed
earlier, the subject matter of a will could be anything, the only requirement is that, it
should be transferable and should be in the legators ownership at the of his death.