Meaning and Nature of Will

Testamentary Capacity (Major and of Sound Mind)

The term Will or Wasiyat under Islamic law refers to an instrument by which a person (called the testator) disposes of his property to take effect after his death. It is considered a pious act and a means of earning spiritual merit (sawab). It allows a Muslim to exercise his right of ownership even after death to a limited extent.

A Muslim can bequeath only up to one-third ($\frac{1}{3}$) of his property through a will. The remaining two-thirds must be distributed according to the rules of Islamic inheritance (Faraid). The portion beyond one-third requires the consent of the legal heirs.

Definition:

According to Hedaya: “A will is a legal declaration of the intention of a Muslim with respect to his property, which he desires to be carried into effect after his death.”

Nature of Will:

• A will is ambulatory, i.e., it becomes effective only upon the death of the testator.
• It is revocable anytime during the lifetime of the testator.
• It creates a right in favour of the legatee only after the death of the testator.

Testamentary Capacity

1. Major: The testator must have attained majority. In India, under the Indian Majority Act, a person becomes a major upon completing 18 years of age (or 21 years if under court-appointed guardianship).

2. Sound Mind: The person must be mentally sound and capable of understanding the nature and consequences of making a will. A lunatic, intoxicated person, or a person under coercion or undue influence lacks this capacity.

Note: A will made during lucid intervals by a lunatic is considered valid if made freely and voluntarily.

Conclusion: Testamentary capacity is the legal foundation of a valid will. In its absence, the will is void and cannot take effect.

Essentials of a Valid Will

Declaration by Testator

The will must include a clear and voluntary declaration by the testator regarding the bequest. This declaration should reflect the testator’s unambiguous intent to bequeath a portion of his property upon death.

Essentials of Declaration:

• It must be made during the lifetime of the testator and take effect only after death.
• It must be free from coercion, fraud or undue influence.
• It must specify what is being bequeathed and to whom.
• The testator must be aware of the nature and consequences of the act.

A will made under compulsion, mistake, or during unsoundness of mind will not be enforceable.

Oral Will (Sunni) vs. Written Will (Shia)

Oral Will in Sunni Law

In Sunni law, a will can be made orally and still be valid, provided:

• The testator makes the declaration in the presence of at least two trustworthy witnesses.
• The will must be specific and clear in its terms.
• It must not contradict the principles of Shariah law, especially regarding the rights of heirs.

Limitations: Oral wills are difficult to prove and are prone to disputes due to lack of documentary evidence.

Written Will in Shia Law

Shia law gives greater emphasis to written wills to avoid future conflicts. A written will must:

• Be signed or thumb-impressed by the testator.
• Be attested by two adult Muslim witnesses.
• Clearly mention the legatee and the subject matter of the bequest.

Note: In both Sunni and Shia law, the will should not violate the limit of one-third of the total estate without the consent of heirs.

Answer:

Formalities of a Will

Though Islamic law is flexible regarding the form of a will, the following formalities are generally observed for authenticity and legal acceptance:

General Formalities:

• Clear declaration: The testator must state that the document or words constitute a will.
• Identity of legatee: The person receiving the bequest should be clearly named or identified.
• Description of subject-matter: The property or item being bequeathed must be described in sufficient detail.

Execution and Witnesses:

• The will must be signed or thumb-impressed by the testator.
• There must be two witnesses to attest the will (especially for written wills).
• Witnesses must be adult Muslims of sound mind and character.

Registration of Will:

Though not mandatory, it is advisable to register the will under the Indian Registration Act, 1908. This ensures greater authenticity and reduces the chances of future disputes.

Conclusion: The observance of proper formalities — especially writing, witnessing, and registration — helps preserve the intent of the testator and ensures fair distribution of the estate.

Bequests to Heirs

Consent of other heirs

Under Islamic law, there is a general restriction on making a bequest (wasiyat) in favour of a legal heir. The rationale behind this is to preserve the sanctity of the rules of inheritance as laid down in the Qur'an, which clearly prescribe fixed shares for each heir.

General Rule:

Bequests in favour of legal heirs are not valid without the consent of other heirs after the death of the testator. This rule is based on the well-established Hadith of Prophet Muhammad (PBUH):

“No bequest is to an heir unless other heirs consent to it.”

This ensures fairness and prevents a testator from disturbing the balance of inheritance by favouring one heir over another.

Who is a Legal Heir?

Legal heirs include relatives like spouse, children, parents, etc., who are entitled to inherit fixed shares under Islamic succession law.

Effect of Consent:

• If all other heirs consent after the testator’s death, the bequest becomes valid.
• If any one heir objects, the bequest to a legal heir becomes void.

Answer:

Testamentary Capacity of Minors and Lunatics

For a will to be valid in Islamic law, the testator must have testamentary capacity, i.e., the legal ability to make a will. This includes being:

• A major (attained the age of majority, i.e., 18 years in India or 21 years under court guardianship).
• Of sound mind at the time of making the will.

Minors:

Minors are not competent to make a will because they lack legal capacity and maturity of judgment. Any will made by a minor is considered void.

Lunatics:

Persons who are mentally unsound at the time of making a will are also not considered capable testators. However, if a lunatic makes a will during a lucid interval (a period when he is mentally stable and aware), the will is valid.

Answer:

Answer:

Bequests Exceeding One-third of the Property

According to Islamic law, a Muslim is permitted to bequeath only up to one-third ($\frac{1}{3}$) of his net estate (i.e., after deducting funeral expenses and debts). This restriction is intended to safeguard the rights of legal heirs as prescribed in the Qur’an.

General Rule:

• If the bequest is within one-third, it is valid without the need for any approval.
• If the bequest exceeds one-third, it is valid only to the extent of one-third unless the legal heirs consent after the death of the testator.

Basis in Hadith:

The Prophet (PBUH) said to Sa’d bin Abi Waqqas:

“One-third, and even one-third is too much.”

Illustrative Table:

Answer:

Conclusion: The one-third rule ensures a balance between personal wishes and divine prescriptions for inheritance. Any bequest beyond one-third should always be approached with caution and proper consent.

Revocation of Wills

Express Revocation

Express revocation refers to the clear and direct cancellation of a previously made will by the testator (the person who made the will). It must be done with full mental capacity and intention to revoke.

Modes of Express Revocation:

• By making a subsequent will that explicitly cancels the earlier one.
• By writing a revocation statement, such as "I hereby revoke my earlier will dated...".
• By physically destroying the will (burning, tearing, or obliterating), provided it is done by the testator or under his direction and with intent to revoke.

Note: Destruction without the intention to revoke, or by someone else without authority, is not a valid revocation.

Answer:

Implied Revocation

Implied revocation occurs when a new will is made that contradicts or replaces the earlier one, without expressly revoking it. The law assumes that the testator intended to revoke the previous one.

Circumstances Leading to Implied Revocation:

• The contents of the new will are inconsistent with the previous will.
• The entire estate is disposed of again in the new will, leaving nothing for the previous beneficiaries.

In such cases, the former will stands revoked to the extent of inconsistency or completely if it covers the entire estate.

Answer:

Administration of Estates

Executor (Wasi)

In Islamic law, the Executor (known as Wasi) is the person appointed by the testator to carry out the instructions in the will and manage the estate after death.

Role and Duties of Wasi:

• Arranging for funeral expenses from the estate.
• Payment of debts and liabilities of the deceased.
• Executing the valid bequests made in the will (within the one-third limit).
• Distribution of the remaining estate among legal heirs.

A wasi can be a family member, friend, or a trusted individual, and must act in good faith and in the interest of the deceased’s estate.

Eligibility of Wasi:

• Must be of sound mind and have attained majority.
• Cannot be a minor or legally disqualified.

Answer:

Probate

Probate is the legal process by which a will is validated and recognized by a competent court. In India, it is governed by the Indian Succession Act, 1925 (for non-Muslims) but Muslims are generally governed by personal law and are not strictly required to obtain probate, except in certain cases.

When Probate is Necessary:

• If the will relates to immovable property situated in Mumbai, Kolkata, or Chennai.
• If a dispute arises among heirs or beneficiaries.

Process of Probate:

1. The executor files a petition for probate in the District Court.
2. The court verifies the authenticity of the will.
3. Notices are issued to heirs and objections (if any) are heard.
4. If satisfied, the court issues a probate certificate, legally authorizing the executor to act.

Answer: