Wasiyat

Muslim Will (Wasiyat) A 'Will or Testament' is a document or an instrument, which declares or contains the intention of the owner of the property as to how his property is to be disposed of (distributed) after his/her death. The will takes effect on the death of the person making it. It can be revoked by the maker, before his death. Will is the Anglo Mohammedan word for Wasiyat. Generally, Wasiyat means will, but also has other meanings. It may signify a moral exhortation, a specific legacy, or the capacity of the executor. In general, a will means a document containing the desire, regarding how a person wants to utilize or divide his property, after he is dead. 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. For a Muslim, Wasiyat is a divine institution because it is regulated by Quran. It offers to the testator a means to change the course of inheritance to certain extent and to recognize the value of those relatives who are excluded from inheritance or strangers who might have helped him in life or in last moments. Prophet Mohammad has declared that this power is not unrestricted and should not be exercised to the injury of the lawful heirs. The person making the Will may revoke it 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 the subject matter of the will or by giving the same property to someone else by another Will. But if the marriage of a Muslim has been held under the Special Marriages Act, 1954, then such a Muslim cannot execute a Will under the Muslim law as the provisions of Indian Succession Act, 1925 shall be applicable in such cases. Formalities of Wills: - Muslim law requires no specific formalities for creation of a will. It may be made in writing or oral or even by gestures. Though it is in writing, it need not be signed by the testator and attested by the witnesses (Ramjilal vs. Ahmed, AIR 1952 MP 56). It is necessary that the intention of the testator should be clear and unequivocal. Construction of Will: - Under Muslim law, it is not necessary to make a Will only in writing. It may be made either orally or in writing. No particular form is prescribed and a written Will need not be signed or attested. In the case of oral Will, the person who asserts it will have to establish and prove it with utmost precision beyond doubt.

For instance, if the testator, to his will, bequeaths one house to heir A and the other for heir B without any specification. Then, the heirs have to make necessary arrangement. Will - Meaning: - A 'Will or Testament' is a document or an instrument, which declares or contains the intention of the owner of the property as to how his property is to be disposed of (distributed) after his/her death. The will takes effect on the death of the person making it. It can be revoked by the maker, before his death. Testator: - The person, who makes/creates a will is called 'Testator'. Legate: - The person/persons, in whose favour, the will is created is called 'Legatee', Legacy: - The subject matter of the will is called 'Legacy'. It is the property to be distributed among the heirs. Executor: - The testator, while executing the will, may appoint a person to execute the will in accordance with its contents (after his death). He is called 'Executor'. In the absence of the appointment of Executor by the testator, the Court may appoint a person called 'Administrator' to execute thee will. Essentials of a valid Muslim will 1. Competency of the testator (who can make the will) Any Muslim, including a man or a woman, who is major and is of sound mind can make a will. Regarding wills, the age of majority is governed by Indian Majority Act. A will made by a minor is invalid but it can be validated by ratification after he attains majority. A person of unsound mind is not competent to make a will and a will made by such a person is invalid. A will made by a person while of sound mind, who later becomes of unsound mind, becomes invalid. In Abdul Manan Khan vs Mirtuza Khan AIR 1991, Patna HC held that any Mohammadan having a sound mind and not a minor may make a valid will to dispose off the property. So far as a deed 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. 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 the person who has done any act towards committing suicide is invalid but if the will is made before doing of any act towards committing suicide, it is valid. 2. Competency of the legatee Any person capable of holding property may be the legatee under a will. Thus, sex, age, creed, or religions are no bar. However, no one can be made the

beneficial owner of the shares against his will, therefore, to complete the transfer; the legatee must give his express or implied consent to accepting the legacy. An institution or juristic person can be a legatee. A non-Muslim can be a legatee if he is not an enemy of Islam and is not hostile towards Islam. Murderer- In Sunni law, a testator's murderer cannot be a legatee. In Shia law, if the act of the murderer was an accident or he acted negligently, he can be a legatee otherwise not. Unborn person - In Sunni Law, a child born within 6 months of the date of making of the will is considered to be in existence and is a valid legatee. In Shia law, the period is 10 months, which is the maximum period of gestation. Bequest for a charitable object is valid. Now this rule has been liberalised i.e. he must have taken birth within normal gestational period from the death of testator. 3. Validity of the subject of will - To be able to will a property, it must be – i.

Capable of being transferred.

ii.

In existence at the time of testator's death even if it is not in existence at the time of making will. Thus, a bequest cannot be made of anything that is to be performed or produced in future.

iii.

In the ownership of the testator.

A bequest that is to take effect only upon any uncertain event happening is a contingent bequest, and is void. However, a bequest with a condition that derogates from its completeness is valid and will take effect as if the condition did not exist. For example, a grant is made to X for his life and then it is stipulated to go to Y after death of X. In this case, X will get the grant completely and Y will get nothing. Thus, a bequest of life estate is not valid either under Shia or Sunni Law. 4. Extent of power of will – The testamentary power of a Muslim is limited in two ways – Limitations as regards to person - The general rule is laid down in Ghulam Mohammad vs Ghulam Hussain 1932 by Allahbad HC, that a bequest in favour of a heir is not valid unless the other heirs consent to the bequest after the death of the testator. Whether a person is a heir or not is determined at the time of testator's death.

Under Shia law, a testator may bequest a heir as long as it does not exceed one third of his property and no consent of other heirs is required. If all the property was bequested to one heir and other was not given anything, the bequest was void in its entirety. Limitations as regard to the quantum (amount) - The general principle is that a Muslim is not allowed to will more than 1/3rd of his property after taking out funeral charges and debt. However, under Hanafi law, it may be valid if heirs give the consent after the death of the testator. In Shia law, such consent can be taken either before or after the death. Another exception is that if the testator has no heir, he can will any amount. The govt. cannot act as a heir to the heirless person. A Muslim cannot bequest his property in favour of own heir, unless the other heirs consent to the bequest after the death of the testator. The person should be heir at the time of the death of the testator. But, 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 the other heirs. The consent can be given before or after the death of the testator. But, if the entire estate is bequeathed to heir excluding other heirs entirely from inheritance, the bequest will be void in its entirety. Bequeathable one-third: The bequeathable one-third means a third of the estate of a testator as it is left after the payment of his funeral expenses, debts and other charges. The law in this respect may be stated thus: (i) All schools of Muslim law, except the Ithana Ashari School, hold that the bequest of more than the bequethable one-third is invalid unless consented to by the heirs after the death of the testator. Consent can be inferred from the conduct. Mere silence by other heirs by not participating in the concerned proceedings and by remaining ex parte cannot be considered as implied consent. (ii) According to the Ithana Ashari School, the consent of the heirs, to validate a bequest of more than one-third, may be given even during the life time of the testator, and it does not need ratification after the death of the testator. The Ithana Asharis also hold that a bequest of any part of the estate even more than bequeathable one third may be made for the performance of the obligatory religious duties or by way of muzaribat or qeraz (both words have the same meaning, an enterprise in which one invests his capital and another his labour with mutual participation in profit is known as mazari bat or qeraz) on the terms of equal division of profits between the legatee and the heirs.

(iii) Under a valid custom, a Muslim may be allowed to dispose of his entire property under his will. The Shariat Act, 1937 does not apply to wills, and, therefore, a Muslim, who has the power to dispose of his entire property under a will, can do so even now. (See Chapter I of this work for details). (iv) If a testator has no heirs, he may dispose of his entire property by a will. The right of the State to take the property by escheat does not prevent an heirless testator from bequeathing his entire property. (v) A bequest of more than one-third may be validated by the consent of heirs. The rationale behind this rule is that the limitation on the testator’s power of disposition is solely for the benefit of the heirs, and if they want to forego the benefit, they are free to do so. The consent of heirs may be express or implied. For instance, P bequeaths his entire property in favour of X, a stranger. The will is attested by P’s two sons, A and B, who are the only heirs. After P’s death X enters into possession of the property and recovers rents with the full knowledge of A and B. These facts are sufficient to indicate the implied consent on the part of A and B. Consent once given cannot be rescinded. (vi) Where a testator dies leaving behind only a wife/husband as the sole heir and no blood relations, then if the testator is a male, he can bequeath 5/6 of his estate, and if the testator is a female, she can bequeath 2/3 of the estate. For instance, a Muslim woman makes a will under which she bequeaths one-half of her properties to her husband. She dies leaving behind her husband and no blood relation. Under Muslim law, bequests to the heir upto 1/3 of property are valid. Thus, the husband will take 1/3 of the estate (the bequeathable 1/3 under the will and 1/2 of the remaining as an heir. In all he takes 2/3—1/3 under the will and 1/3 as an heir). Ordinarily, the remaining 1/3 will go to the State by escheat, but on account of the bequest of 1/2 to him (a woman can bequeath upto 2/3 under these circumstances), he again takes 1/6 of the remaining 1/3 to complete the one-half estate that is bequeathed to him. In the result the husband takes 1/3 as heir and 1/3 + 1/6, as a legatee, Le, in all he takes 5/6; the remaining 1/6 goes to the State by escheat. (vii) An heirless Muslim can bequest his entire property. A Muslim who has only his wife as an heir can bequest the entire property minus the share of the wife. (viii) If a Muslim had married or got his marriage registered under the Special Marriage Act, 1954, then Muslim law of succession does not apply to him. He is

governed by the Succession Act, 1925, and, therefore, he can bequeath his entire property by a will. According to Sunni Law, the consent by the heirs should be given only after the death of the testator. The consent given during the lifetime of the testator is of no legal effect. Under Shia Law, a consent given under undue influence, fraud, coercion or misrepresentation is not valid and the person who has given such consent may claim inheritance. The consent by the heirs can be given either expressly or impliedly. If the heirs attest the Will and agree for the legatee taking possession of the property bequeathed, then it amounts to consent. Lapsing of Legacies: Sunni Law: Under the Sunni Law, if the legatee does not survive the testator, the legacy lapses and forms part of the estate of the testator. Shia Law: Under the Shia law, however, if the legatee does not survive the testator, the legacy does not lapse, but passes to the heirs of the legatee. It is only when the legatee has no heirs that the legacy will lapse. Abatement of legacies: When a testator bequeaths in violation of one-third rule and the heirs refuse to give consent, the bequests, under the Hanafi law, abate rateably. Thus, if a Sunni Muslim bequeaths 1/2 of his estate to P and 1/4 to Q, since the total exceeds one-third, the legacies will be rateably reduced at the ratio of 1/2: 1/4. Or, suppose a dies leaving behind a will under which he directs Rs. 100 to be paid to his relatives, Rs. 100 to the Fakirs, and Rs. 40 for expiration of prayers that he missed. He leaves behind an estate worth Rs. 216. The total amount of legacies comes of Rs. 240. While the bequeathable one-third is only Rs. 72. Hence, the legacies must abate in the proportion of 72 to 240, Le; they will be reduced to 40, 30 and 12, respectively. Under the Shia law, the rule is different. Bequest of prior date takes priority over those of later date unless the later bequest was intended to revoke the earlier. For instance, a Shia bequeaths 1/3 of his estate to A, 1/4 to В and 1/2 to C. The heirs do not consent. The result will be that A will take 1/3, while В and С will not take anything. Or, suppose a gives 1/12 to P, 1/4 to Q and 1/6 to R. Then P will take 1/12 and Q will take 1/4. Since this completes the 1/3 estate, R will take nothing but if the same 1/3 successively bequeathed to A, В and C, then it means that the last bequest is in revocation of the former two. Then С will take 1/3, and A and В will take nothing. Problem:

A bequeaths 1/6th of his property to C, 1/2 to F and the remaining to S, one of his heirs. The other heirs do not give consent to these bequests. What would be the result on the rights of the legatees, if the testator is (i) a Sunni, (ii) a Shia? Answer: If the testator is a Sunni, the bequest to S, who is one of his heirs, will fail. The bequests to С and F will rateably abate, and they will take 1/12 and 1/4 respectively. According to the Shia law, a bequest to an heir is valid so long as it does not exceed the bequeathable third. If the testator is a Shia, S will take 1/3. Differences between Shia and Sunni Law:

Sunni Law

Shia Law

Bequest to an heir without consent of other Bequest up to 1/3 of the property is heirs is invalid. valid even without consent. Bequest to unborn child is valid if the child is Valid if the child is born within 10 born within 6 months of making the will. months of making the will. Legatee who causes death even by accident is Legatee who causes death by accident incapable of receiving. is capable. For a bequest of more than 1/3 to a non-heir, Heir's consent may be obtained before the consent of heir must be obtained after the or after death. death of testator. Valid only if the will is made before Will of a person committing suicide is valid. the person does any act towards committing suicide. Recognizes rateable distribution.

Does not distribution.

recognize

rateable

The legacy lapses only if the legatee If the legatee dies before testator, the legacy dies without heirs otherwise, it goes to lapses and goes back to the testator. legatee's heirs. Legatee must accept the legacy after the Legatee can accept the legacy even death of the testator. before the death of the testator. Differences between Will and Gift: Gift

Will

It is an immediate transfer of right or It is a transfer after death. interest.

Delivery of possession is necessary.

Delivery of possession is not necessary.

Subject of gift must exist at the time of Subject of will must exist at the time of death making gift. of the testator. Right of donor is unrestricted.

It is limited up to 1/3rd of the property.

Cannot be revoked.

Can be revoked by making another will.

Death-Bed Gifts (Donatio Mortis Causa): Gifts made by Muslims during ‘death-illness’ (Marz-ul-maut) are regarded as wills. Where a Muslim makes any gift of his properties while on his death-bed, the legal effects of the transaction are not of a Hiba but of will. There are two aspects of a gift made during death-illness; in its formation it is a pure gift but in its legal consequences it is a will. Describing the nature of a ‘gift during death-illness’ (donatio mortis causa) Buckley, L.J. observed that it is a gift of amphibious nature; not exactly a gift nor exactly a legacy but partaking of the nature of both. The doctrine of death-bed gifts is based on the donor’s state of mind at the time of the transfer. When a person makes a gift during death- illness, he intends to distribute his properties according to his own scheme giving up all the hopes for his life. A person suffering from mortal-disease believes, beyond reasonable doubt that he would die very soon. With these apprehensions in mind, he attempts to give away his properties. The result is that although the transfer is inter-vivos but the idea behind such transfer is that it is likely to take place only after the donor’s death. Through a gift, a Muslim donor on his death-bed may transfer his properties without any restriction of its quantity although in its effects, the transaction is a will. This may frustrate the very purpose of one-third rule in respect of Muslim wills. Accordingly, in order to prevent the evasion of restrictions on the testamentary capacity of a Muslim, a death-bed gift is interpreted as a will. Essentials of a Death-bed-Gift:

A gift during death-illness is a pure Hiba in its formation but after the donor’s death it operates like a will. Therefore, the essential conditions for a gift during death-illness are: (i) there is a valid and complete gift, and (ii) this gift is made during death-illness (Marz-ul-maut) of the donor. (i) A valid and complete gift (Hiba):

The only difference between a simple gift and a death-bed gift is that if a gift is made by a donor during his death-illness, the gift is testamentary; if it is made normally, the gift is inter vivos i.e. pure Hiba. Thus, in a death-bed gift all the essentials of a valid Hiba are necessary. There must be declaration, acceptance and the actual or constructive delivery of possession. In brief, the gift must be valid in all respects according to the provisions of Muslim personal law. (ii) Death-illness (Marz-ul-maut):

Death-illness is an illness which ultimately results in the death of a person. However, there must also be a reasonable apprehension in the mind of that person that he would die on account of that illness. In other words, any disease or ailment may be regarded as a death-illness if the person suffering from it believes that there are no chances of his survival. It is to be noted that the crucial test for Marz-ulmaut is the subjective apprehension of death in the mind of the donor. The seriousness of the disease or apprehension of death caused in the minds of other persons is not relevant. Whether a disease is a death-illness or not depends upon the donor’s state of mind rather than the gravity of that disease. According to Tyabji, for establishing the existence of death-illness following conditions are necessary: (a) The illness must have caused death; (b) There must have been proximate danger of death, so that there was preponderance of apprehension of death (i.e. at given time death is more probable than life); (c) Some degree of subjective apprehension of death in the mind of sick person; and (d) Some external indicia, chief among which are inability to attend to ordinary avocations. There cannot be any objective criterion for determining the existence of deathillness. If a disease causes the death and the donor thought it highly probable that this illness would soon end fatally, it is death-illness. Whether an illness is mortalillness or not is a question of fact and each case must be examined in the light of evidence produced before the court. It has been held that paralysis is not a death-illness. In Mohammad Gulshere v. Mariyam, it was held by the Allahabad High Court that boils or corbuncle for long

continuance for over a year may not cause apprehension of death, therefore, it cannot be regarded as death-illness. Similarly, asthama, lingering consumption and sudden bursting of blood-vessels have not been regarded as death- illness. But, a rapid consumption, tumour in the stomach and tuberculosis of the last stage has been held to be death-illness. A serious case of pneumonia was held to be a death-illness. In Abdul Hafiz v. Sahib Bi,4i an aged Muslim of over eighty years remained ill very seriously for four days. On the last day, i.e. just before his death, he made a gift. It was held by Bombay High Court that the gift was made during a death- illness. The Court observed that what are required to be proved upon the preponderance of probabilities are whether the gift was made by the ailing person while under the apprehension of death and, that whether in such ailing he died. During the delivery of a child, the pains of child-birth may also be regarded as death-illness. It is to be noted that a gift during Marz-ul-maut is established only where the donor dies. If the donor survives that illness, the transaction continues to be a gift. Legal Consequences of Death-Bed Gifts:

Gifts made during mortal-disease have testamentary effects. That is to say, although the transaction may be constituted as a gift but, it would be interpreted like a will. In its operation, such a gift is governed by the Muslim law of wills. Accordingly, where the donee is a stranger or non-heir, he cannot get more than one-third of total assets without consent of the donor’s legal heirs. Where donee is one of the legal heirs of the donor, the consent of the remaining legal heirs is necessary even though the property given is less than one-third. However, if the donor is a Shia Muslim, a gift during death-illness is valid up to one-third even if the donee is an heir of the donor. It is subject to two restrictions: (i) disqualification of heir; and (ii) property disposed of should not exceed 1 /3 of the net assets. These restrictions may he relaxed with the consent of the heirs. With regard to the restrictions of making a death-bed-gift by a Muslim, the rules with regard to disposition to the extent of 1/3 rd' of net assets (after meeting debts and funeral expenses of testator) and also to obtain the consent of other heirs, are applicable in the case of Marz-UI-Maut also.

Will/Gift of Life-Interest or Life-Estate Under the Sunni law, gift of the ‘life-interest’ or ‘life estate’ is not possible because a gift for life operates as an absolute gift. But, under Shia law, the gift of life-interest (or life-estate) is possible. Where a Shia donor makes a gift ‘for life’,

the donee can enjoy the property during his life but after his death the property reverts back to donor or to donor’s legal heirs. Under Muslim law, whenever the term property is used in its general sense it means and includes its corpus as well as the usufruct. Therefore, ordinarily a transfer of property means transfer of the corpus together with all the beneficial interests (usufruct) of that property. In other words, unless otherwise provided, in the transfer it is implied that the transferee would have all the incidental benefits i.e. usufruct. But technically, the ownership of the corpus i.e. the property itself may be distinguished from the ownership of the usufruct of that property. For example, a garden is the corpus and is owned by its owner but its usufruct, that is to say, the producer of the garden (fruits and the flowers) may be allowed to be owned for some time by another person. Thus, where the owner of a mango-grove sells only the mangoes to another person for one year, the purchaser gets the ownership in all the mangoes for one year but he does not get the ownership of the mango-grove as such. As the owner of a property can sell the usufruct while retaining the property with him, he may also make a gift only of the usufruct for a specified duration. In such a case, the donee may not get any interest in the property but he may get the absolute interest in its produce or benefits for a specified duration. This distinction between the ownership of a corpus and the ownership of an usufruct of a property has been the basis of validating a gift of life-interest under the Shia law in Nawazish Ali Khan’s case given below: Nawazish Ali Khan v. Ali Raza Khan: Nawab Nasir Ali Khan, a Shia Muslim, executed a will under which he appointed his nephew Fateh Ali Khan as the successor of his properties with all the powers, including the power of possession and enjoyment as owner provided he be alive. The Will further provided that after the death of Fateh Ali Khan, Mohd. Ali Khan would be the successor of the said properties. After the death of this successor (i.e. Mohd. Ali Khan) testator’s another nephew Hidayat Ali Khan was made the successor, provided he was alive. The Will further provided that the last successor (Hidayat Ali Khan) was authorised also to nominate his own successor of the said properties. But Hidayat Ali Khan died before the death of Mohd. Ali Khan ‘therefore, Mohd. Ali Khan became the last successor. And, under the power of appointment (given

under the will to the last surviving Successor) he appointed Nawazish Ali Khan (son of Hidayat Ali Khan) to succeed after his death. In the language of law, successive life interests were granted under this will and the last successor was given also the vested remainder. This appointment was challenged by Ali Raza Khan who was a grandson of the testator Nawab Nasir Ali Khan. The questions to be decided in this case were: (i) Whether the creation of successive life interests was valid under Muslim law and (ii) Whether Muslim law recognises a vested remainder? The Privy Council held that if it is found that a gift has been made of limited interest; the gift can take effect out of the usufruct, leaving the ownership of the corpus unaffected except to the extent to which its enjoyment is postponed. In other words, gift of a limited or life interest is valid because it may be accepted as a gift of absolute interest in the usufruct of the property for a fixed period. Regarding the second issue, namely, the validity of the power of appointment given to a life tenant, the Privy Council held that the power of appointment was not valid because no concept of ‘vested remainder’ is recognised under Muslim personal law. The court observed that where an Ithna Asharia Shia testator bequeaths his property to A, В and С successively, and then provides that the last surviving devisee should have the power to nominate his successor from among the descendents of the three life tenants, such power was not known to any school of Muslim law as received in India. Accordingly, it was held by the Court that Fateh Ali Khan and Mohd. Ali Khan took the life interests lawfully and after the death of Mohd. Ali Khan, the property should revert back to the natural heir of the testator. Thus, Ali Raza Khan, being the grandson of Nawab Nasir Ali Khan (testator) was entitled to succeed the properties as a natural heir in preference to Nawazish Ali Khan. It may be noted that the interest created in favour of the last two successors were contingent interests. Contingency was their survival at the death of the preceding successor. Being contingent interests, the interest of the last two successors were void. But neither of the parties to the litigation was interested in raising this point. The reasoning and the law laid down in the above case was followed in another Shia case, Anjuman Ara v. Nawab Asif Kadar, where the Calcutta High Court, after analysing all the provisions of Muslim law on the point, observed:

“In the Mahomedan law, there is a clear distinction between the corpus or ‘the substance’ and the usufruct. Over the corpus that law recognizes only absolute, complete and indivisible ownership and there it countenances no detraction or limitation. In the usufruct however, limited interests can be created and the limitation may well be in point of time or duration, e.g. for life or for a fixed period.” It is interesting to note that the validity and enforceability of a gift of life interest has been recognised-also in a Sunni case. In Shaik Mastan Bi v, Shaik Bikari Sahab which was a Sunni case, the Andhra Pradesh High Court held that although a Hanafi Muslim cannot make a gratuitous transfer of ownership of a property with limitation for the life of the donor “but when the absolute ownership is transferred to A, and only the enjoyment of the property is reserved to B, then both the gifts are valid. In other words, the court held that limitations in the enjoyment of a property are permissible but limitations in the ownership are not allowed. According to Fyzee, normally Hiba is a gift of the corpus therefore, Hiba for life is not valid; Ariyat on the other hand, is gift of the usufruct, therefore, Ariyat for life is legal and permissible in the Hanafi law.

It is suggested to go through class notes also.