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Discuss the nature and meaning of will. What are the essentials of a valid muslim will? Wn make a will? What are the formalities necessary for a valid will? What restrictions areposed on a Muslim's testamentary disposition? Explain. Distinguish between shia and su

ws regarding will.

is the Anglo Mohammedan word for Wasiyat. Generally, Wasiyat means will, but also has other meanings . It may signify a mor

ortation, a specific legacy, or the capacity of the executor. In general, a will means a document containing the desire, regarding h

son wants to utilize or divide his property, after he is dead. According to section 2(h) of Indian Succession Act 1925, Will is the laration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.

a Musl im, Wasiyat is a divine ins titution because it is regulated by Quran. It offers to the testator a means to change the course

eritance to certain extent and to recognize the value of those relatives who are excluded from inheritance or strangers who might

ped him in life or in last moments. Prophet Mohammad has declared that this power is not unrestricted and should not be exerc

injury of the lawful heirs.

sentials of a valid Muslim will

1. Compete ncy 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 m

is governed by Indian Majority Act. A wil l made by a minor is invalid but it can be validated by ratification after he attains majo

person of unsound mind is not competent to make a will and a wil l made by such a person is invalid. A will made by a persowhile 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 min

may make a valid wil l to dispose off the property. So far as a deed is concerned, no formality or a particular form is required

for the purpose of creating a valid wi ll. An unequivocal express ion 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 w

made by the person who has done any act towards committing suicide is invalid but if the will is made before doing of any a

towards comm itting suicide, it is valid.

2. Competency of the legateeAny person capable of holding property may be the legatee under a will. Thus, sex, age, creed, or religion are no bar. Howev

one can be made the beneficial owner of the shares agains t his wi ll, therefore, to complete the transfer, the legatee must gi

express or implied consent to accepting the legacy.

An institution 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.

In Sunni law, a testator's murderer cannot be a legatee. In Shia law, if the act of the murderer was an accident, he can be a l

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

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.

3. Validity of the subject of will -To be able to wi ll a property, it must be -1. capable of being transferred.

2. 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 can

made of any thing that is to be performed or produced in future.

3. 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 be

with a condition that derogates from its completeness is valid and will take effect as if the condition did not exist. For exampgrant 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 a

will get nothing. Thus, a bequest of life estate is not valid either under Shia or Sunni Law.

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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 Allah

HC, that a bequest in favour of a heir is not valid unless the other heirs cons ent 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 othe

is required. In Hussaini Begam vs Mohammad Mehdi 1927, it was held that if all the property was bequested to one heir an

were not given anything, the bequest was void in its entirety.

Limitations as regard to the amount -The general principle is that a mus lim is not allowed to will more than 1/3rd of his pr

after taking out funeral charges and debt. However, under Hanafi law, it may be valid if heirs give the consent after the death

testator. In Shia law, such consent can be taken either before or after the death. Another exception is that if the testator has n

he can wil l any amount. The govt. cannot act as a heir to the heirless person.

ferences between Shia and Sunni Law on WillSunni Law Shia Law

quest to an heir wi thout consent of other heirs is invalid.Beques t up to 1/3 of the property is valid even without

consent.

quest to unborn child is valid if the child is born within 6 months of

aking the will.Valid if the child is born within 10 months of making the

gatee who causes death even by accident is incapable of receiving. Legatee who causes death by accident is capable.

r a bequest of more than 1/3 to a non-heir, the consent of heir must

obtained after the death of testator.Heir's consent may be obtained before or after death.

ll of a person committing suicide is valid.Valid only if the will is made before the person does any

towards committing suicide.

ecognizes rateable distribution. Does not recognize rateable distribution.

he legatee dies before testator, the legacy lapses and goes back to

e testator.

The legacy lapses only if the legatee dies without heirs

otherwise, it goes to legatee's heirs .

gatee must accept the legacy after the death of the testator.Legatee can accept the legacy even before the death of

testator.

ferences between Will and Gift

Gift Will

s an immediate trans fer of right or interes t. It is a trans fer after death.

elivery of possession is necessary. Delivery of possession is not necessary.

bject of gift must exist at the time of making gift. Subject of will must exist at the time of death of the testator.

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

annot be revoked. Can be revoked by making another will.