Slide Title

• What is will ?
• How Will can be made ?
• Are There any Type of will ?
• What Obligation of a Will ?
• How a Will can be cancel ?
• Sunni and Shia law difference
• Different between a Will and Gift ?
What Is will ?
Will can be define :
• From the word ‘wassa’ which means to order, advise,
promise or give away property after death.
• Will is the declaration of intention of testator/legator
with respect to his property which he desire to be
carried out after his death.
Concept of will under Muslim Law
A Will or Testament or Wasiyat has
been defined as LEGAL instrument by
which a person makes disposition of
his property to take effect after his
death.
The distinguishing feature of a Will is
that it becomes effective after the
death of the legator and it is
revocable.
⦿ Object and Significance of Wills
The object of Wills according to the
tradition of the Prophet is to provide for
the maintenance of members of family
and other relatives where they cannot be
properly provided for by the law of
inheritance.

At the same time the prophet has

declared that the power should not be
exercised to the injury of the lawful
heirs.
How will Can Be Made ?
• ⦿ As a general rule, no formality is required for making a
• Will (Abdul Manan Khan v Mirtuza Khan).
• No writing is necessary to make a Will valid, and no
particular form, even verbal declaration is necessary so
long as the intention of the legator is sufficiently
ascertained.
• Where the Will is reduced to writing it is called a
‘Wasiyatnama.’ If it is in writing it need not be
signed. It does not require attestation and if it is attested
there is no need to get it registered.
• Instructions of the legator written on a plain paper, or in
the form of a letter, that in clear cut terms provide for
distribution of his property after his death would
constitute a valid Will (Abdul Hameed V.Mahomed Yoonus).
• In case, a Will is oral, the intention of the legator should
be sufficiently ascertained. In comparison to a Will in
writing which is easier to prove, the burden to prove an
oral Will is heavy.
 By written :
A written will where
. there are no witnesses
to an oral declaration
By oral : is valid if it written in
Any expression which the known
signifies the intention of handwriting/signature
legator is sufficient of the legator
for the purpose of
constituting a bequest
Pillars of a Will
 AL-MUSI (legator) ‫یصومال‬

He is a person who makes

will. He must have legal capacity at
the time of making will. It will take
1. The legator must be
effect after his death and he must sane and adult
fulfil the following conditions:

2. He must be the owner of the 3. He must not be a

property of will. bankcrupt and debtor.

4. He must be a freed person,

⦿

• Every major Muslim (above 18 years) of sound

mind can make a Will.

• At the time of execution of a Will (i.e. when it is

being made), the legator must be of sound mind.

• A Will that is executed in apprehension of death is

valid, but under the Shia law, if a person executes
any Will after attempting to commit suicide, the
Will is void.
•
⦿ A minor is incompetent to make a Will (such a
Will is void) but a Will made by minor may
subsequently be validated by his ratification on
attaining majority.
• A Will procured by undue influence, coercion or
fraud is not valid, and the court takes great care
in admitting the Will of a pardanashin lady.
Thus, a Will must be executed by a legator with
his free consent.
• Also, the Will is governed by the rules of that
school of Muslim law to which the legator
belonged at the time of execution of the Will. For
example, if the legator was a Shia Muslim at the
time when he wrote the Will, only Shia law of Will
is made applicable.
• ⦿ Any person capable of holding property (Muslim, non- Muslim,
insane, minor, a child in its mother's womb, etc.) may be the
legatee under a Will. Thus, sex, age, creed or religion is no bar to
the taking of a bequest.
• Legatee (including a child in its mother's womb) must be in
existence at the time of making of the Will.
• A bequest may be validly made for the benefit of an institution
(but it should not be an institution that promotes a religion
other than the Muslim religion viz. Hindu temple, Christian
church etc.).

• A bequest for the benefit of a religious or charitable object is

valid. It is unlawful to make a bequest to benefit an object
opposed to Islam e.g. to an idol in Hindu temple, because idol
worship is opposed to Islam.
 (LEGATEE)

 Must be capable of ownership actually or beneficially.

• If he is minor or insane person, will can be
accepted by his guardian on his behalf.
 It can be made in favour of mosque, school, bridge, hospital
or
animals for their maintenance.
 It can be made to the member of deceased’s family who
are helpless and are not his legal heirs like children of those
sons and daughters who already died during the life time of
their father (deceased).
 It can be made to Hmal (child in the womb) but it cannot
be executed until the child is born alive.
 It must be lawful in the sight of Islam. There is no
bequest with unlawful or illegal property.
 It should be in existence actually and transferable to
the legatee after the death of the legator
 It must be available at the time of legator’s death.
 However, will can be made with contingent property
i.e which had not yet happened, e.g unripe fruits and
unborn young animals, but they must be in existence in
the womb of their mother at the time of legator’s death.
Cancelation of a
Will…
The will would be cancelled in the following conditions :
• When (legator) revoked his bequest during his life time.
• When became insane after making his will and
continue on this condition up to his death.
• When (legatee) died before legator and the will was for
a fix person.
• When legatee killed legator intentionally.
• When the legatee returns back the will after the death of
legator to his heirs.
• When the (legacy) was specified and it was destroyed
before the death of legator or before the acceptance
of the legatee after the death of (legator).
When legacy belongs to another person but not to legator
and it is proved, then the will would be revoked.
Are There Any Type Of a
Will ?
 Absolute will Conditional will
A will that is done freely A will that contains certain
conditions imposed by the
Not bound by certain legator.
conditions that are imposed
on the inheritance that The jurists agree that the
may be included by the conditions imposed in a will
legator. are valid as long as they do
not violate the Islamic law
 Generic will Specific will
Intended specifically for a
particular party
A will made in general such as
to the people of a village There is possibility that the
or a city. legator, in making a will to a
specific person, compares
the amount to be willed
with the amount that one of
the heirs should receive.
 Choices of distribution in will

• Distribute 1/3 to non-waris and the balance 2/3 to the

inheritance.
 • If legatee dies before legator
Under Sunni law where before the Will can
⦿ operate, the legatee dies, the bequest will
lapse and the property bequeathed would
remain with the testator and on his death
will go to his heirs in absence of any other
disposition by him.
• Under Shia law, the legacy will lapse only if
the legatee dies without leaving an heir or if
the testator, after the death of the legatee,
revokes the Will. However, if the testator
even after the death of the legatee does not
revoke the Will, on the date of operation of
the Will, the benefit under it will pass to the
heirs of the legatee.
• 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.
• Acceptance of the legacy before the
testator’s death is of no effect( Sunni
law)
• Acceptance of the legacy during the
testator’s life time is lawful(Shia law)
Continue

• Legal heir (consent required) under sunni law

• Legal heir (consent not required) under shia
law
• Accidental death (impediment) sunni law
• Accidental death (no impediment) shia law
• Suicide ( valid) under sunni law
• Suicide ( not valid ) under shia law
• What is Difference
between Gift and a Will ?
Many people make a mistake by considering gift (hiba) and will
(will) same, though these are two different things under
Islamic Law so let us know them both briefly:

GIFT(hibah) WILL (will)

When a person gives any When a person requests for

asset during his lifetime to transfer of ownership of
one of his heirs or relatives the asset to a specific
then that will be regarded person after his death then
as a gift. it was regarded as will.
 Cases when the will is..
• Strongly Required
-A Muslim must make a will if he is involved in any kind of risk
• Recommended
-To settle what he owes to others and also arrange repay debts owed
to Allah in the will , for example :
 kaffaraat
Performance of the required Hajj
Overdue zakah

• Preferred
-For Muslim who have a reasonable size of wealth
• Not preferred
-Not preferred if the heirs are poor.
• Haram or prohibited
-The will should not cause any harm
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