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Concept of Wills under Muslim Law

After a Muslim dies, leaving aside the payment of his debts and funeral expenses he can transfer some amount of property to another person through a will, failing or after which the remaining property is divided among his heirs in accordance with the Shariat.[1]

Thus, as explained by Tyabji, it is the intention of a Muslim in regards to his propertyís disposal on his death.[2]

Nature:
Apart from being able to be in an written or oral form as explained further below, the other two prime qualities of a will are as follows:
  1. It effectuates once the testator dies
  2. It can be revoked before the testator dies
     
The source of the concept of wills are fourfold as follows[3]:
  1. Hedaya:
    Initially written by Shaikh Burhan-ud-Din Ali in the 12th century and then translated by 4 maulavis (from Arabic) and Charles Hamilton (Persian to English), it majorly inclines towards precepts of the Hanafi School of Law because of Shaikhís background.
     
  2. Fatawa Alamgiri:
    Ranking higher to Hedaya according to Privy Council and Indian Courts and compiled in the 17th Century, the work covers all futwas (legal principles) and is again majorly associated with the Hanafi school of law due to background of Muslim sovereigns of India.
  3. Baillie
  4. Sharaya-ul-Islam

Essentials Requisites for making a will:
  1. Capacity:
     
    1. Testator:
      The Capacity to dispose of property through wills is possessed by every major person of sound mind.
      1. A Major
        The age of Majority under Muslim law with regards to matters other than marriage, dower and divorce being regulated by the Indian Majority Act, the same is 18 years and in special cases where a guardian is appointed for a minor, the person after obtaining the age of 21 is competent to make a will. This will by a minor can be ratified once he becomes a major.
      2. Sound mind
        A sound person having the capacity to make a will, a will by an insane person cannot be ratified if he consequently becomes sane. Similarly, even a personís will made when he was of sound mind, becomes invalid on him becoming consequently insane.
      3. Suicide
        As per the precepts of Shia law, the will is considered invalid if the person while making it has ingested poison or injured himself in order to commit suicide. However, the will if made before and the person consequently commits suicide, it being valid, in Mazhar Husen v. Bodha Bibi, whereby the person had ingested poison only after the making of a will, the Court held it to be valid despite the fact that he had thought of committing suicuide during the process of will formation.[4]
      4. Similar to suicide, if there is coercion, undue influence, or fraud behind such making of a will, it is invalid.
    2. Legatee:
      The general principle expounds that firstly, a person capable of owning a property is liable to become a valid Legatee.[5] Secondly, he should be in existence when the will is being made.[6]
 
  1. Thus, the following may generally become valid legatees[7]:
    1. a major /minor
    2. a man / woman
    3. a Muslim
    4. a Non-Muslim who is not hostile towards Islam
    5. a Child in its motherís womb may be a validly legatee. However, it should be born within six months from the date the will is made. [8]
    6. An institution, not in opposition to Islam( thus excluding temple/church trusts)
    7. Religious object/ Charity not in contradiction to Islam, thus not covering contributions for building a church.[9]
       
  2. Persons who canít be legatees:
    1. A person who has renounced Islam cannot become a valid Legatee.
    2. Murderer: General principle excludes the testatorís murderer, whether intentional or unintentional from the scope of being transferred a legacy.[10]
      1. Hanafi law: Without caring whether the act of homicide committed was intentional or unintentional, the person cannot be a legatee.
      2. Ithana Ashari law: Person having unintentionally committed homicide maybe allowed to be legatees.
      3. A legacy made to a person, who does not survive the testator, lapses and forms part of the estate of the deceased.
      4. Custom can put restrictions on who the legatee can be
        As has been observed in Illyas v. Badshah, whereby the custom prevailing among the Guru chela people in Madhya Pradesh put restrictions on whom they could bequeath to, the custom was held to be valid and not in contravention to Muslim law or public policy.[14]

       
  3. Is bequeath to heirs possible?
    The general principle in this case is that unless consented to be other heirs, whether impliedly and not inclusive of mere silence on the part of heirs, property cannot be bequeathed to an heir through a will. This consent in the case of Hanafi law has to be given only after the death of the testator and under Shia law can be given at any time.[11]The share of the heirs only who have consented are bound. [12]

    Exception: Under Ithana Ashari law, it has been observed that only the rule of 1/3rd needs to be followed and regardless of who the legatee is i.e. heir or some one else and thus bequeathing property to an heir is considered appropriate. However, as held in Fahmida v. Jafri, if such bequeath violates the 1/3rd rule, and the consent of the heirs is not obtained, then the whole bequest may be held invalid.[13]
     
B. Necessity of Form:
There being no specific requirement of form (verbal or written) or in fact even necessity of a will being written[15], and the testatorís intention being able to be sufficiently established[16], if in case it is in writing, it need not be signed[17], attested[18] or having the requirement to be titled vasiyat nama, (thus, a document titled ďtamlik-nama (assignment) being considered a valid will as it possessed characteristics of a will[19]). Hence, in Mazar Husen v. Bodha Bibi, whereby the testator had written a letter containing direction as to dispose his property, the same was inferred to be a valid will. [20]

Burden of proof:
  1. Written will:
    S.67 and 68 of Indian Evidence Act as well as S.59 and 63 of Indian Succession act are applicable in cases where the party advancing a will or
    claiming benefits under it has to prove its execution.[21]
     
  2. Oral will:
    The intention of the person making the will and the terms there of being proven beyond doubt and with the greatest accuracy/utmost precision, there lies no conditions requisite as to the number of witnesses, etc.[22] However, this onus being quite heavy, it needs to be fulfilled with utmost precision and guarantying all the circumstances, time and place.[23]

C. Subject matter: What can be bequeathed?
If a property is capable of being transferred, regardless of whether it is movable/immovable or present at the time of making the will. However, it should be present at the moment when the testator dies.[24] The corpus and usufruct both being able to be potentially transferred through a will, it is possible that a person may get the right to use the property e.g. Right to live in house for a certain time or collect rent, and another person may get the ownership of the whole estate.[25]

D. Testamentary Power of a Muslim- Bequeathable one third:
After the payment of certain expenses mentioned before, a Muslim may dispose of 1/3rd of his estate through a will.[26] Also, bequest in future or on the happening of contingency is void.[27] Also, this 1/3rd part maybe bequeathed for pious purposes as follows:
  1. For faraiz: It has been allowed for under the Koran eg. Haj, zakat and expiation
  2. For wajiwat: It has not been mentioned by the Koran but are right eg. sadaka, filrat, charity given on the day of breaking of the fast, and sacrifices
  3. Nawafil:

The priority of the bequeaths are as follows:
Fariaz (Haj>zakat>expiation) > wajjwat , nawafil
If will against rule of 1/3rd:
  1. Consent of heirs:
    If in case the quantity of estate bequeathed is more than 1/3rd, then the consent of the heirs is necessary after the testator dies unless which it is considered invalid.[28] Such consent of the heirs can be inferred from their conduct[29] excluding their mere silence that may not be considered a part of their conduct through implication.[30] However, consent once given cannot be rescinded.[31] In case for pious purposes, if some of the heirs have consented while other havenít, only part from the shares of the heirs that have consented is payable towards the fulfilment of the will.[32]

    Exception: As expounded under Ithana ashari school of law, obtaining the consent of the heirs in case the part bequetheted is more than a third of the estate when the testator is still living is totally valid and the same need not be ratified after the testatorís death.

    Also, if will is being made for muzaribat or qeraz (an endeavour in which one may add capital and other may contribute to labour) whereby the profits born out of the same are divided equally among the legatee and the heirs, than the 1/3rd rule can be broken
     
  2. Under a valid custom:
    If a valid custom prevails that grants a muslim man the right to dispose of his entire property, he may do so as Shariat Act does not apply to the concept of wills.[33]
     
  3.  If no heirs:
    If in case the testator is heirless, than he may dispose of his entire property through wills and the right of the State to receive the property through escheat may not prove to be a hindrance to disposing of entire property through this mode.
     
  4. If only wife/husband is sole heir:
    If in case a Muslim is left behind heirless i.e. he does not have any heirs than it is said that he can dispose of the entire property through a will. In case only the wife is left as a heir i.e. she is the sole heir, then her share being deduced from the property, rest of the property can be bequeathed.[34]
     
  5. If heirless and wife/husband present:
    The capacity of a Muslim man to bequeath property when he is heirless and only his wife his sole heir is 5/6th amount of the property. In the case of a Muslim woman, such power to bequeath property when she is heirless and the husband is the sole heir is 2/3rd of the property.

    Illustration:
    In a case whereby a Muslim woman is heirless and has husband as her sole heir, bequeaths Ĺ of her property to her husband. However, bequest upto 1/3rd is valid under Muslim law. Thus, on her death, firstly, he will receive 1/3rd amount of the property i.e. the amount bequeathable. Further, he will get half of the remaining property i.e. 12 of 2/3 =1/3.Thus, in toto he take 2/3rd of the property, 1/3rd under will and the other third as a heir.

    If the bequest was not made to the husband by the woman, the remaining 1/3rd of the property would have been taken up by the State through escheat. However, as when the woman is heirless, her capacity to bequeath being two-thirds of the property, 1/6th of the property further is transferred to the husband thus, the will being a total of 1/3 plus1/6. Thus, adding this to his share as a heir, it amounts to 5/6th of the property, while the last part or 1/6th goes to the State by escheat.
     
  6. Muslim married under SPA:
    Muslim married under Special Marriage Act, 1972 cannot bequeath his entire property through a will cause, after marriage, he is governed by Indian Succession act rather than Muslim law.

What if heirs donít consent - Abatement of legacies:
If in case the heirs donít consent in cases where the bequeath is made in contradiction to the 1/3rd rule, the following law applies:

Sunni law:
The bequests abate rateably eg. If a Muslim Man bequeaths 1/5th of the property to a Mr. X and 1/3rd of the property to Mr. Y, the total exceeding the allowed 1/3rd, the shares being conferred on Mr. X and Mr. Y would be in the ration of 1/5: 1/3.

Shia law:
The bequest of the prior date gains priority over the latter. E.g. A Muslim man bequeaths to Mr. X  1/6th of his estate on  Monday, and to Mr. Y another 1/6th of his estate on Tuesday and to Mr. Z 1/4th on Wednesday, firstly Mr. X will get his 1/6th part, then Mr. Y will get his 1/6th part. After this, the 1/3rd bequeathable part being over Mr. Z will be paid nothing.

Difference between Shia and Suni:
As has been previously covered, to summarize, the major differences between the Sunni and Shia law of wills are as follows:
Subject Matter Sunni law: Shia law:
Competence of testator A will is valid if its made before, while or after committing suicide. A will is valid only if the testator commits suicide after the will is made.
Competence of Legatee- If testator was killed by legatee The law being strict in this matter, a murderer whether intentional or unintentional cannot be a valid legatee and receive the property under the will. Under Shia law, only intentional homicide results in invalidating the legatee as a valid one while he can receive bequeathed property if the murder was unintentional.
Competence of Legatee- Bequest to heirs Under Sunni law, the principle being very strict, no bequest can be made to heirs. Under Shia law, bequest to heirs is valid upto the bequeathable 1/3rd part beyond which consent of heirs is needed.
In cases where consent of hire is needed: Right time The heirs need to consent after the death of the testator. Consent can be given at any time, be it when the testator is living or when he dies. However, once given or denied, the stance cannot be changed.[35]
Can property be bequeathed to child in womb[36] Will is valid if child is born within 6 months of making it. Will is valid if the child to whom property is bequeathed is born within 10 months of making it.
What happens to will if legatee dies before the testator[37] The will is reverted back to the testator. The will gets nullified only in case the testator have heirs or the testator himself revokes it
Abatement of legacies If in case heirs donít consent to a bequest made over the 1/3rd  rule, the bequests abate rateably. If in case heirs donít consent to a bequest made over the 1/3rd  rule, then the bequest made first is fulfilled first i.e. in a preferential distribution scheme.

Other Concepts concerning wills:
  1. Construction:
    Giving regards to the rules of Muslim law and the intention of the testatorł wherever ambiguous statements result in difficulty to interpret, it is left to the discretion of the heirs eg. If a book is to be given, it is heirís discretion to give n old/new one. However, in cases where only the article has been described, and the testator does not own the same, the bequeast is not valid. It is valid only if it is intended that the value of the article is to be bequeathed.[38]
     
  2. Revocation:
    A will maybe revoked at any time either in a express way eg. By tearing/burning it or by bequeathing the same property to someone else in a subsequently made one. However, mere denial or property bequeath to someone else in different part of the will may not be considered revocation.[39]

References:
  1. Mulla: Principles of Mahomedan Law, 20th Edition, Lexis Nexis.
  2. Dr. Paras Diwan, Muslim Law in Modern India, Allahabad Law agency, 13th Edition, ISBN 978-93-80231-19-8
End-Notes:
  1. Dr Anand Kumar Tripathi, The Concept Of ĎWillí Under Muslim Law: A Study, International Journal of Law and Legal Jurisprudence Studies, ISSN:2348-8212, Volume 4 Issue 3,pg 72, http://ijlljs.in/wp-content/uploads/2017/08/Will.pdf
  2. Tyabji: Muslim Law, Ed. IV, p.754, also see Will under Muslim Law, Legal Service India, http://www.legalserviceindia.com/legal/article-3529-will-under-muslim-law.html
  3. Mulla: Principles of Mahomedan Law, 20th Edition, Lexis Nexis.
  4. Mazhar Husen v. Bodha Bibi, (1898)21AII91 (India).
  5. Dr Anand Kumar Tripathi, The Concept Of ĎWillí Under Muslim Law: A Study, International Journal of Law and Legal Jurisprudence Studies, ISSN:2348-8212,Volume 4 Issue 3, http://ijlljs.in/wp-content/uploads/2017/08/Will.pdf
  6. Abdul Cadur vs. Turner, (1884) 9 Bom 158(India).
  7. Tripathi, supra note 57.
  8. Abdul v. Turner, (1884) 9 Bom 158 (India).
  9. Dr. Paras Diwan, Muslim Law in Modern India, Allahabad Law agency, 13th Edition, ISBN 978-93-80231-19-8, page 259
  10. Tyabji, 782, also see Paras diwan, Id. at 262.
  11. Narnnise v. Shikh, 1987 Kant 222 (India).
  12. Ghulam Mahommad v. Ghulam Hussain, 1932 PC 81(India).
  13. Fahmida v. Jafri, (1908) 3 All 153(India).
  14. Illyas v. Badshah, AIR 1990 MP 335(India).
  15. Mahomed Altaf v. Ahmed Buksh (1876) 25 W.R. 121 PC(India).
  16. Id.
  17. Aulia Bibi v. Alauddin (1906) 28 All. 715(India
  18. Sarabai v. Mahomed (1919) 43 Bom. 641(India), also see, Ibadat Ali v. Baldia Cooperative Bank (1968) 11 A.L.T 124(India).
  19. Saiad Kasum v. Shaista Bibi (1875) 7 N.W.P. 313(India).
  20. Mazar Husen v. Bodha Bibi, (1898) 21 All. 91(India).
  21. H. Venkatachala Iyengar v. B.N. Thimmajamma , A.I.R. 1959 SC 443(India).
  22. Venkat v. Namdeo, (1931) 58 lA 362(India), also see M.A Qureshi, Principles of Muhammadan Law, (Ninth Edition, 2005) p.327.
  23. Babboo Ben Pertab v. Rajendra, (1867) 12 MIA 1(India).
  24. Dr. Paras Diwan, Muslim Law in Modern India, Allahabad Law agency, 13th Edition, ISBN 978-93-80231-19-8,
    , pg 256
  25. Dr. Paras Diwan, Muslim Law in Modern India, Allahabad Law agency, 13th Edition, ISBN 978-93-80231-19-8, pg 257.
  26. Khajooroonissa v. Rowshan Jehan (1876) 2 Cal. 184(India).
  27. Dr. Paras Diwan, Muslim Law in Modern India, Allahabad Law agency, 13th Edition, ISBN 978-93-80231-19-8, pg. 258.
  28. Abdul V. Mirtuza, 1991 Pat 154 (India)
  29. Abdul V. Mirtuza, 1991 Pat 154(India).
  30. Sajathi Bi v. Fatima Bi, 2002 Mad. 484(India).
  31. Hedaya 671, see Mulla: Principles of Mahomedan Law, 20th Edition, Lexis Nexis.
  32. Dr. Paras Diwan, Muslim Law in Modern India, Allahabad Law agency, 13th Edition, ISBN 978-93-80231-19-8, pg. 258
  33. Dr. Paras Diwan, Muslim Law in Modern India, Allahabad Law agency, 13th Edition, ISBN 978-93-80231-19-8,pg.257.
  34. Damodar v. Shahijabibi, 1989 Bom 1(India).
  35. Mahabir Prasad v. Mustafa, (1937)41 Cal W.N.933(India).
  36. Akanksha, Will under the Islamic law of Inheritance in India, I pleaders, June 10, 2019, https://blog.ipleaders.in/islamic-law-will/#:~:text=Meaning%20and%20nature%20of%20Will&text=A%20Will%20is%20a%20legal,is%20known%20as%20'Wasiyat'.&text=If%20the%20Will%20is%20made,favour%20the%20Will%20is%20made.
  37. Id.
  38. Dr. Paras Diwan, Muslim Law in Modern India, Allahabad Law agency, 13th Edition, ISBN 978-93-80231-19-8,pg 261.
  39. Id.

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