Muslim Will

MEANING A Will ill unde underr Moham Mohamme meda dan n Law Law is call called ed as Wasiya siyat, t, whic which h mean meanss a moral moral exhortation or a declaration in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate or property. The Mohammedan Law restricts a Muslim person to beueath his whole property in a will and allows him to  beueath !"#rd of his estate by writing will, which will take effect after his death. The law is mainly uncodified is governed by the holy book and customs. The Will ( Al-wasiyya)  Al-wasiyya) The $slamic will includes beuests and legacies, instructions and admonishments, and assignments of rights. %o specific wording is necessary for making a will. $n $slamic law the will &wasiyya &wasiyya'' can be oral or written, and the intention of the testator must be clear that thewasiyya thewasiyya is to be executed after his death. any expression which signifies the intention of the testator is sufficient for the purpose of constituting a beuest. 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 handwr handwriti iting" ng"sig signat nature ure of the testat testator or accord according ing to Maliki Maliki and (anbal (anbalii  fiqh. The wasiyya is executed after payment of debts and funeral expenses. The ma)ority view is that debts to Allah &*WT' such as +akh, obligatory expiation etc. should be paid whether mentioned in the will or not. (owever, there is difference of opinion on this matter amongst the Muslim )urists Will Will is the legal declaratio declaration n of a persons persons intention intention which he wishes wishes to be  performed after his death and once the Will Will is made by the testator it can only be revoked during his lifetime. A Will does not involve any transfer, nor affect any transfer inter-vivos, but it is an expression of intending to appoint a person who will look after the properties after his &Testator' &Testator' death. A Will Will regulates the succession and  provides for succession as declared by the testator. $ndian Law which is governed under *ection / of 0The $ndian *uccession Act, !12/3 which provides different rules for intestate succession and testamentary succession in $ndia. $t applies to all the communities in $ndia except Muslim. $n $ndia there is a well-developed system of  succ succes essi sion on laws laws that that gove govern rnss a pers person ons prop proper erty ty afte afterr his his deat death. h. The The $ndi $ndian an *ucces *uccessio sion n Act Act !12/ !12/ applies applies expres expressly sly to Wills ills and codici codicils ls made made by (indus (indus,, 4uddhists, *ikhs, 5ains, 6arsis and 7hristians but not to Mohammedans as they are largely covered by Muslim 6ersonal Law. CONCEPT The records that have been handed down to us from antiuity regarding the custom customss and usages usages of the pre-$s pre-$slam lamite ite Arabs Arabs seem to establ establish ish abunda abundantl ntly y that that testamentary dispositions were not unknown among the pagan tribes of the peninsula. 4ut it is difficult to say, from the materials in our possession, what were the conditions which regulated the validity or invalidity of wills made by them. The 8abbinical Law which was in force among the 5ewish tribes prohibited the testator from depriving his lawful heirs from succession9 it also precluded him from

constituting a stranger as an heir. 4ut when a disposition was effectuated by the immediate delivery of possession, the 8abbinical Law apparently regarded it as valid. A will could be made either verbally or in writing, but, generally speaking, the first mode was considered as the more preferable of the two. The The :oran :oran expres expressly sly sancti sanctione oned d the power power of makin making g a testam testament entary ary disposition, and regulated the formalities and conditions to which it is sub)ected . The leading authority on the sub)ect of wills is the (edaya, which was translated from the origin original al Arabi Arabicc by four four Maulvi Maulviss or Mahom Mahomeda edan n lawyer lawyers; s; and from from 6ersia 6ersian n into into in Ali who flourished in the twelfth century. The author of the (edaya belonged to the (anafi *chool, and it is the doctrines of that school that he has principally recorded in that work. 0Wills,3 0Wills,3 says the (edaya, 0are lawful on a favourable construction. Analogy would suggest that they are unlawful, because a beuest signifies an endowment with a thing in a way which occasions such endowment to be referred to a time when the  property has become void in the proprietor &i.e., the testator', and as an endowment with reference to a future period &as if a person were to say to another, $ constitute you proprietor of this article on the morrow,' is unlawful, supposing even that the donors property in the article still continues to exist at that time, it follows that the suspension of the deed to a period when the property is null and void &as at the decease of the party', is a fortiori unlawful. The reasons, however, for a more favourable construction in this particular are twofold;- ?irst, there is an indispensable indispensable necessity that men men should have the power of  making beuests, for a man, from the delusion of his hopes, is improvident and deficient in practice, but when sickness invades him, he becomes alarmed and afraid of deat death. h. at that that peri period od,, ther theref efor ore, e, he stan stands ds in need need of comp compen ensa sati ting ng for for his his deficiencies by means of his property- and this in such a manner that if he should die of that illness, his ob)ects &namely, compensation or his deficiency and merit in a future state' may be obtained-or, on the other hand, if he should recover, that he may apply the said property to his wants- and as these ob)ects are attainable by giving a legal validity to wills, wills, there are, therefore, ordained to be lawful. *econdly, *econdly, wills are decided to be lawful in the :oran and the traditions, and all doctors, moreover, have concurred in this opinion. 3 The nucleus nucleus of the law of Wills Wills is, by common common consent, consent, to be found in a tradition of the 6rophet, reported by 4ukhari ; *ad ibn Abi Waas said; 0The Messenger of =od used to visit me at Mecca, in the year of the ?arewell pilgrimage, on account of illness which has become very sever. *o $ said, 0My illness has become very severe and $ have much property and there is none to inherit from me but a daughter, shall $ then beueath two-thirds of my property as a charity@3 he said, 0%o.3 $ said, 0(alf@3 he said, 0%o.3 then he said; 04eueath one-third and one-third is much,

for if thou leavest thy heirs free from want, it is better than thou leavest them in want,  begging of &others' people9 and thou dost not spend anything seeking thereby the  pleasure of Allah but thou art rewarded for it, even for that which thou puttest into the mouth of thy wife.3 The rule of one-third was recognised by our courts as early as !BC, and later on in awud'.. *imila *imilarr hadith hadith narrated by Abu Kmamah &8A' and reported by $bn Ma)ah, Ahmad and others A will made by a person of unsound mind is void and it does not become valid  by his becoming of sound mind subseuently. subseuently. A will made by a person while of a sound mind becomes invalid if the testator subseuently becomes permanently of  unsound unsound mind but when insanity insanity has not lasted for more than six months, months, beuest is not avoided . The isabilities 8emoval Act, !/B, under which apostasy is no more a disualification. >ebts have priority over legacy. $f the testator is in debt to the full amount of  his property, the beuest would not be lawful unless the creditors relinuish their  claims. A person condemned to death may also make a will. A will by a person under  coercion, undue influence or fraud is disallowed. A will will made by a person after he has taken poison or has done any other act towards the commission of suicide, is not valid. The *hia law however says that if the person made the will and then committed suicide, the beuest would be valid. B. "EGATEE(( Al-musa  Al-musa lahu lahu) AND HIS COMPETENCE =enerally speaking, for a beuest 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  beuest. any beuest made in favour of any legal heir already entitled to a share is invalid under traditional *unni Muslim law unless consented to by other legal heirs. an acknowledgement of debt in favour of a legal heir is valid. Acceptan Acceptance ce or re)ection re)ection of a beuest beuest by the legatee legatee is only relevant relevant after the death of the testator and not before. =enerally speaking once a legatee has accepted or  re)ected a beuest he cannot change his mind subseuently. $f the legatee dies without accepting or re)ecting the beuest, the beuest becomes part of the legatees estate acco accord rdin ing g to the (an (anafi afi  fiqh  because nonre)ection is regarded as acceptance. According to the other three main *unni madhahib, the right to accept or re)ect the  beuest passes onto the heirs of the legatee. There is difference of opinion as to the time at which ownership of a beuest is transferred from the testator &or his heirs' to the legatee. According to the (anafi and *hafii fiqh *hafii fiqh the transfer of ownership is at the time of death of the testator, according to the Maliki and (anbali fiqh (anbali  fiqh the transfer of ownership is at the time of accepting the beuest. All the *unni madhahib agree that if the legatee dies before the testator, the  beuest is invalid since a beuest can only be accepted ac cepted after the death of the testator. $f there is uncertainty as to whether or not the legatee survived the testator, such as a missing legatee, the beuest is invalid because the legatee must be alive at the time of  death of the testator for the will to be valid. $f the testator and legatee die together, such as in an air crash and it is not certain who died first, the beuest is invalid according to the (anafi, Maliki and *hafii fiqh.  fiqh. 4ut according to the (anbali fiqh, (anbali  fiqh, the beuest devolves upon the

legatees heirs heirs who may accept or re)ect it. Any person capable of holding property may be a legatee under a will. Thus, sex, age, creed or religion is no bar to the taking of beuest. %o one can be made the  beneficial owner of share against his will. Therefore, the title to the sub)ect of beuest can only be completed with the express or implied assent of the legatee after the death of the testator. $n princi principle ple,, a wasiya wasiyatt is lawful lawful for any person person or ob)ect ob)ect actual actually ly or  constr construct uctive ively ly in existe existence nce at the time time of the dispos dispositi ition. on. 0$t is an indisp indispens ensabl ablee condition, condition,33 says the *hariya, 0that the legatee legatee be in existence at the time of beuest, beuest, and if he should not be alive, the legacy is not valid, in the same way as a legacy to a deceased person, or to one supposed to be alive, but who is afterwards proved to have  been dead at the time of beuest.3 *o also it is stated in the Alamgiri, Alamgiri, that 0there is no no  beuest for the non-existing non-existing or the dead.3 A beuest in favour of a non-Muslim is valid. $n (edaya, the following verses of the Duran has been uoted; 0Je are not prohibited, o believers, from acts of   benevolence towards those who sub)ect themselves to you, and refrain from battles and and cont conten enti tion ons. s.33 $t is ther therefo efore re clea clearr that that a Musl Muslim im can can give give his his prop proper erty ty by  beuesting the same in favour of a non-Muslim provided the non-Muslim is not hostile towards $slam. A beuest to non-Muslims is valid according to all schools except *hafii *chool. An apostate may be a legatee. 4ut in $ndia, this rule of *hafii law does not apply owing to Act xi of !/B. $n the *hafii view, a beuest in favour of an apostate is, according to better opinion, valid. Manslayer is one who kills another person, from whom he intends to take legacy. (anafi law prohibits him to take any interest in the  beuest. $n $thna Ashari &*hia' law, however, the more logical view is taken and only intentional homicide leads to exclusion. $nstitution, whether religious or charitable, can be valid legatees. When beuest is made in favour of two or more persons in the same will it is called a )oint legacy. $f the legacy fails in respect of any one or more of these, who would be entitled to the legacy@ $n such cases, if a particular legatee, was incompetent ab initio, the entire property sub)ect matter of the will, goes to the remaining legatee or legatees. Thus- A makes a beuest of !"#rd )ointly in favour of 4 and 7 &i.e., !"Cth each'. 4 was dead at the time of the beuest, whether A knew or not. 7 would get the entire !"#rd. A class of persons &0all the poor of this town3' may be made a legatee. $t would  )ointly rank as a single legatee. According to Abu (anifa and Abu Jusuf, Jusuf, the amount may be spent on one poor person and according to Muhammadan on at least two  persons. A class may be special class as well. The express or implied assent of the legatee after the death of the testator is necessary to complete the legatees title to the beuest. The legatee has a right to disclaim. Knder *hia law, a legatee may validly accept part of the beuest, and

disclaim and remainder. Acceptance or re)ection during the lifetime of the testator has no effect9 even if the legatee had re)ected the beuest during the lifetime of its author, he can accept it after his death, and that would be valid. $f however, the legatee survives the testator and dies without assenting to the will, the assent is presumed. Knder *hafi law the right of acceptance passes to his heirs. The law favours the  positive side, hence the implied assent. And if the legatee has derived any benefits from the will, the assent is presumed. *imilarly the assent of a child or a child in embryo is presumed. Also when a class &poor' is the legatee, the acceptance is  presumed and the will becomes becomes irrevocable by the death death of the testator. testator. E+EC!TOR OF THE WI"" ( AL-WASI  AL-WASI AL- MUKHTAR MUKHTAR)) The executor &al-wasi &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 $slamic $slamic law, law, to watch the interests of the children and of the estate. The authority authority of  the executor should be specified. (anafi and Maliki fiqh Maliki  fiqh state that the executor should  be trustworthy and truthful9 the *hafii  fiqh state that the executor must be )ust. The (anafi (anafi  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'. $f one starts acting as an executor, one will be regarded as having accepted the appointment, both in $slamic and in