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Understanding the Concept of Muslim Will through Legal Lens

You know not who among your children and parents are nearest to you in benefit. This is the law of God. Indeed, God is Wise and all-Knowing. 1 -Allah Almighty says in Holy Quran.

In terms of general law in India, mentioned under Section 2 of the Indian Succession Act2. A Will is meant to dispose of property. There should be some property that is being given to others when the testator3 dies. Certain formalities must be complied with so as to form a valid Will. However, succession law in Muslims is different from the laws of Hindu succession. Muslim law defines that only 1/3rd property can be distributed according to will or Wasiyat made by deceased and 2/3rd property is distributed according to law of inheritance among the heirs.

Will is the translation of Latin word voluntas, which was used in the text of the Roman law to express the intention of a testator. A wassiyat or will under Muslim law is an institution of god , since its exercise is regulated by Quran. It takes effect after death of a person. Wassiyat enables the testator to give share in his movable or immovable property to some of those relatives or strangers who have rendered services or devotion to him in his last moments. This seems to be the reason why the word wassaya or wassiyat has two meanings; it means a will and it also signifies a moral suasion or moral duty.

To understand the concept of will it is important to understand the source of Muslim law. The two primary and transmitted sources of Islamic Law are the Quran4 and the Sunna5.
Before the revelation of Islam, the jahiliyya6 people were known to have used the will as one of the methods of distribution for the deceased�s properties. According to Ali al-Khafif 7the will has been known by the people before the revelation of Islam.

Furthermore, in the early stage of Islam, wills were still being used by the Muslims to manage the deceased�s inheritance. After hijra8 the method of will was continued but the deceased were asked to enlist parents and relatives as beneficiaries. Until Allah revealed the verses in al-Quran, then only the will was replaced as an inheritance method.

Nevertheless, the law of will was not totally abolished, instead it remains as one of the methods for the deceased to distribute one- third of their wealth to what they desire, and has been made as one of the rights among the Islamic rights of inheritance to be carried out by the heirs of the deceased.

Reason Behind One-Third Rule

The story behind this was one of the fellow associates of Prophet was very ill and there were chances of his death, as was very old as well, also he canceled his Mecca due to ill-health. He was asked by the Prophet about the distribution of his wealth, for which replied that he will give all his property in charity (not to the family), to which Prophet said he should give only 1/3 of his total property to any one of his choices so that the major portion remains within the family and they will not become destitute in future.

The Quran introduced a number of different restrictions on matters of inheritance through will. The reason behind 1/3rd rule was to ensure the shares of legal heirs. In case of will of absolute property nothing will remain for the heirs this law was made to prevent testator from interfering the claim of lawful heir Secondly, to benefit those who are excluded from law of inheritance and to leave heirs rich and not in poverty.

General Concept Of Will

  1. Muslim law is not applicable to
    The Muslim law of will doesn't apply to a Muslim whose marriage is solemnized under the provisions of the Special Marriage Act, 1954 (instead of Muslim personal laws). this can be because upon solemnization of marriage under this Act, the principles of Muslim personal law cease apply to him with relation to matters of succession of his property.
  2. Important Terminology
    Testator: Testator is a person who makes or creates a will. Legatee: Legatee is a person in whose favour will is created. Legacy: Legacy is the property to be distributed among the heirs.

    Executor is a person appointed by a person to execute the will in accordance with its content. In absence of appointments of executor, the court can appoint a person called administrator to execute a will.
  3. Formalities involved
    If he or she dies leaving a will, the property is distributed among his/her heirs in keeping with the principles of Testamentary Succession. In other words, the property is distributed as per the contents of the testament or will. On the opposite hand, if someone dies leaving no testament (will), that's dies intestate, the principles of intestate Succession are applied for distribution of the property among heirs. Muslim law requires no specific formalities for the execution of a will.

    A will may be oral or in writing. , no specific format is laid down. it should not even be signed by the testator or attested by the witnesses. But it's preferred that it should be in written form so it can be presented as an evidence in court if any dispute arose. In Ramjilal vs. Ahmed 9 It was held that, it's necessary that the intention of the testator should be clear and unequivocal. In Mazhar vs. Bodha10, a letter was written by a Muslim shortly before his death, containing directions for the disposition of his property, was accepted to constitute a legitimate.

    Will. In Venkat vs. Namdeo11, it had been held when a will is oral, no sort of declaration is necessary. Obviously, the burden of creating an oral will is extremely heavy, and an oral will must be proved with utmost precision and with every circumstance of your time and place.
  4. Subject-Matter of Wassiyat or Will
    Any type of property, immovable or movable, corporeal or incorporeal, which is capable of being transferred, may form the subject-matter of a bequest. Under Muslim law, it is possible that a testator may give to one person and the usufruct to another.
  5. Capacity to make a Wasiyat or Will by testator
    Every Muslim, who is of sound mind and of the age of majority, has the capacity to make a will. Under the Shia law, a will made by a person, who has taken poison, or, has wounded himself with a view to committing suicide, is invalid. But a will made by a person, who subsequently commits suicide is valid. A Will in order to be valid must be made with free consent. A Will made under compulsion or mistake is invalid. The provisions of the Contract Act may be applied for determining whether the consent if free. 12A will made by a person under coercion, undue influence, or fraud is invalid. Similarly, the court will scrutinize the will of a pardanaseen lady 13very carefully before admitting it.
  6. Competence of Legatee
    Mohammedan law does not make any exception as to the competency to receive a bequest. The legatee may be Muslim or non-Muslim who is not hostile towards Islam except in the case of an apostate14 and a murderer of the testator. Also will cannot be made in favour of Hindu temple or a society that propagates another religion. Any person who is capable of holding property may be made a beneficiary. A bequest may be made for the benefit of an institution or of a pious or charitable object.15

Duties Of Muslim

When a Muslim die there are four duties which needs to be performed:
  1. Payment of funeral expenses & Payment of his/her debt
    The foremost duty which need to be performed after death of testator is to pay the funeral expenses and clear all the debt.
    The prophet judged with the debt before the will and you people the followers of Prophet recite (the verse of al- Quaran) the will before the debt. -Al Tirmidhi

    The Islamic law prioritize the payment of funeral expenses and rights of debts, followed by right of will, followed by rights of law of inheritance after the testator has died.
  2. Execution of his/her will
    Imam al-Suhayli has explained by saying:
    The purpose of a will is to perform charity and bring relationship closer among the people.

    It is balanced with certain rules so the properties of the deceased are not fully spent on the will alone for that reason Islam has ruled that a will must not exceed 1/3rd property. This rule had been in existence in order to take is care of the interest of the deserving heirs.

    Other than that, it is obligated that a will should not be made for one's heirs, because heirs already have their shares as ruled by Allah in the rights of inheritance after fulfilling the rights of will. However if the deceased insist on putting more than one third of his properties in a will, it can be done with the permission of all heirs who have rights on inheritance.
  3. Distribution of the remaining estate amongst the heirs according to shariat
    Heirs are always entitled to a share of the inheritance. Primary heirs consist of the spouse, both parents and children which include both son and daughter. They can inherit2/3rd of property in condition if will has been prepared by deceased or otherwise full property is distributed among them accordingly.

Law Regarding Consent Of Heirs

A Muslim cannot by Will, dispose off more than a one- third of his estate after payment of funeral expenses and debts. Mohammedan law does not allow testator to make will in favour of any particular heir unless consented by other heirs.16 The policy of the law requiring consent of other heirs, when a bequest to an heir is made, is to prevent the testator from interfering by Will with the course of devolution of property according to law among his heirs, although he may give a specified portion, to a stranger. The reason is that a bequest in favour of an heir would be an injury to the other heirs, as it would reduce their share, and would consequently induce a breach of the ties of kindred.

Bequeaths in excess of one-third and/or in favour of any heir, are validated and will be given effect to, after the death of the testator, if the heirs whose rights are affected by such dispositions consent thereto expressly or impliedly.17 The entire Will would be binding if all heirs agree to the bequest but if only some of them agree to it, their shares would be bound by it.18The consent of all heirs would ensure that the beneficiary can take the property absolutely.

The consenting heirs must be major and sane otherwise their consent will not be valid. The insolvency of the consenting heir is immaterial. The voluntary assent given by the heirs during the death-illness of the testator cannot validate a Will in favour of an heir or in excess of one-third. If the heirs are minors at the time of the testator�s death, consent must be given by them after attaining majority. A consent given by a guardian is not valid.

The Relationship Between Will & Inheritance

In the early stage of collection and writing of Islamic laws, the subject of will and inheritance has been argued in detail in the books of fiqh19 The Islamic laws aims at providing justice to all people, and amongst the justice stressed out in Islam is in the issue of ownership of properties of the deceased whether it should be transferred through a will or inheritance. Therefore, amongst the early method of inheritance being used at the beginning of its commandment is through a will. In Quran it is written:

Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable � a duty upon the righteous20

The above verse explained that a will has been acknowledged as a mechanism to distribute wealth in the early stage of Islam before the obligations to distribute wealth through the laws of inheritance. The deceased is given an authoritative power to make will of 1/3rd property without limits to anyone he likes except for his heirs whom it is compulsory to receive his wealth through inheritance.

Revocation Of Will

A Muslim will or any part thereof could also be revoked by the testator at any time before his death. Any act, which ends up within the extinction of the topic matter or proprietary rights of the testator, will result in revocation. The revocation may be express (oral or in writing) or implied.
  1. Express Revocation:
    The express revocation consists of an oral or written declaration made by the testator. It can be done either orally or even in writing. The intention to revoke i.e., the reason behind such revocation should be unequivocal. For instance, A will may be expressly revoked by tearing it off or by burning it.
  2. Implied Revocation:
    In this state of affairs, the behavior of the testator is to be inquired into to ascertain whether he has revoked the deed or any of the disposition in it. For instance, if the testator transfers an equivalent property by sale or gift subsequently to somebody else, it amounts to implied revocation.

Comparative Study Between Shia & Sunni Law

Shia Laws Sunni Laws
Bequest to an heir is valid only if it is one-third. Bequest to an heir is invalid even if it is one-third.
Consent of the heirs must be given before or after death of testator. In order to pass property more than 1/3 to any person ,consent of heirs is necessary to be taken after death of testator.
Bequest in favor of the child in womb of her mother is valid subjected that the child is born
within 10 months of date of declaration of will.
Bequest in favor of the child in womb of her mother is valid subjected that the child is born
within 6 months of date of declaration of will.
A will by the testator who later commits suicide is invalid. A will by testator, when written or declared in all his senses, who later suicide is valid.
Legatee committing murder or causing death of the testator intentionally cannot claim the property of the testator, but if accidentally or negligently then he can claim the legacy. Legatee committing murder or causing death of the testator cannot claim the property of the testator later.

  1. Power to alienate through will should be made coextensive and absolute as the word will itself denotes that it is a document that permits a person to make decisions on how his estate will be managed and distributed after his death and it should not be under undue influence and should be out of free will.
  2. It should be made compulsory that will should be in written form as it will look more formal and could be serve as a evidence in court of law when the will is in question.
  3. Muslims does not have clear idea about the law due to its complex nature this level it show, it is need to be clarified so that the people can have better understanding about the true roles of a will and its position in managing inheritance. Therefore, the authorities should take advantage of this situation to increase information regarding the laws of will and the management of a deceased�s properties for all Muslims.
  4. Muslim should be allowed to make will in favour if Hindu temple or any religious society. The Quaran talks about Sadaqah which means the voluntary act of giving of alms or charity with the intention of pleasing Allah. Quran had never mentioned that a person should give charity based on religion, it just mention that it should be for noble purpose. This is a discriminatory practice which should be ended.

Muslim Will is important for distribution of property of the deceased. The concept is bit different from other religions in India: It is selective mechanism and not an obligation. It provides an opportunity to testator to correct the law of succession to some extent as it empowers the testator to give property to people who are not exclusively mentioned in law of inheritance.

Thus, the researcher conclude that a will is an important instrument to be carried out before the distribution of properties to the inheritors. This research also found out that the knowledge of the Muslim community in about the concept of will as one of the Islamic rights of inheritance is at a medium level as the concept is bit complex for a general public to understand.

With relate to that, the concept of will has to be revealed more comprehensively among the Muslims so it�s role can be understood in a deeper sense especially when managing the distribution of inheritance.

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