Concept of will under Muslim Law
A Will or Testament or Wasiyat has been defined as “an instrument by which a person makes disposition of his property to take effect after his death.”
Tyabji defines Will as “conferment of right of property in a specific thing or in a profit or advantage or in a gratuity to take effect on the death of the testator.”
The distinguishing feature of a Will is that it becomes effective after the death of the testator and it is revocable.
Unlike any other disposition (e.g. sale or gift), the testator exercises full control over the property bequeathed till he is alive: the legatee or beneficiary under the Will cannot interfere in any manner whatsoever in the legator's power of enjoyment of the property including its disposal or transfer (in that case the Will becomes revoked).
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.
A bequest in favour of an heir would be an injury to the other heirs as it would reduce their shares and would consequently induce a breach of the ties of kindred.
Thus the policy of the Muslim law is to permit a man to give away the whole of his property by gift inter vivos, but to prevent him, except for one third of his estate, from interfering by Will with the course of the devolution of property according to the laws of inheritance.
A Will offers to the testator the means of correcting to a certain extent the law of succession, and enabling some of those relatives who are excluded from inheritance to obtain a share in his property, and recognizing the services rendered to him by a stranger.
Testamentary Power and its Limits (Bequeathable one-Third)
A Muslim does not possess an unlimited power of making disposition by Will.
There are two-fold restrictions on the power of a Muslim to dispose of his property by Will, which are in respect of the person in whose favour the bequest is made, and as to the extent to which he can dispose of his property.
This is obvious, because the object behind this restriction is to protect the interests of the testator’s heirs.
# No Muslim can make a bequest of more than one-third of his net assets after payment of funeral charges and debts. If the bequeathed property exceeds one-third, the consent of other heirs is essential (Sunni and Shia laws).
A bequest of entire property to one heir to the exclusion of other heirs is void -Husaini Begum V. Mohd. Mehdi
Where the heirs refuse to give their consent, the bequest would be valid only to the extent of one-third of the property and the rest of the two-thirds would go by intestate succession.
# In respect of bequest of one-third to an heir, the consent of other heirs is required in Sunni law, but not in Shia law. In case of a non-heir (stranger) the consent of heirs is not required in both.
# The above rule of bequeathable 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. Thus Government is no heir to an heirless person.
# A bequest made for pious purposes is valid to the extent or one-third of the property, both under Sunni as well as Shia law.
# The ‘1/3rd limit’ rule will not apply if a Muslim marries under the Special Marriage Act, 1954, because then he has all the powers of a testator under the Indian Succession Act, 1925.
Consent of Heirs
Consent must be of heirs and not of presumptive heirs.
Whether a person is an heir or not will be determined at the time of the testator’s death because a person who is an heir at the time of making the Will not remain an heir at the time of testator’s death and vice versa.
Consent by heirs under Sunni law, shall be given only after death of the testator, while in Shia it may be before or after the death of the testator.
Consent must be definitive, whether express or implied by positive conduct, and mere silence on the part of an heir will not amount to implied consent.
The attestation of the Will by the heirs and acquiescence in the legatee taking possession of the property has been held to be sufficient consent.
In cases where only some of the heirs give their consent the shares of those consenting will be bound, and the legacy in excess is payable out of the consenting heir’s share. The consent of heirs who are insolvent has been held effective in validating a bequest.
Consent once given cannot be later rescinded. Similarly, consent cannot be given after an heir has previously repudiated it.
Bequest to Heirs and Non-heirs
Where the testator makes a bequest to heir as well as non-heir by the same legacy, in absence of the consent of heirs, the legacy will not be invalid in its entirety but will take effect with respect to non heirs. The rule is that as far as possible, the Will, will be given the maximum effect that it is capable of.
For example, if the testator bequeaths his total property to an heir and a non-heir, without the heirs giving the consent, the non-heir will take one-third of the property and the rest of the two-thirds will go to the heirs of the testator by inheritance -Muhammad V. Aulia Bibi.
|A bequest to a child in womb is valid if born within 6 months.||It is valid even if born in the longest period of gestation i.e. 10 months.|
|Rateable abatement of legacy applies.||Rule of chronological priority applies.|
|Heir's consent should be given after the death of testator.||Heir's consent may be given before or after the death of testator.|
|Acceptance of the legacy before the testator’s death is of no effect.||Acceptance of the legacy during the testator’s life time is lawful.|
Abatement of Legacies
Where a bequest of more than one-third of property is made to two or more persons and the heirs do not give their consent, the shares are reduced proportionately to bring it down to one-third, or in other words, the bequest abates rateably. The above rule applies in Sunni law only.
According to Shia law, if several bequests are made through a Will, priority would be determined by the order in which they are mentioned or by the point of time. Thus, legacies take effect in order of preference.
The legatee mentioned first in the will gets his share as mentioned under the will. After giving his share, the remaining goes to the second legatee. If there still remains something, it goes to the third and as soon as the one-third property is exhausted, the distribution is stopped and the next legatee does not get anything.
Thus, here a legatee either gets his share or gets some share or gets nothing at all.
*The Book Referred here is Family Law II By A.K. Jain
It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...
How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...
The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...
One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...
Wednesday, Live Law reported that a Kerala court ruled that the Indian Penal Code Section 354, ...
Population control is a massive problem in our country therefore in view of this problem the Ut...
Please Drop Your Comments