This article is written by Sanvi Mishra of second year of University of Allahabad

Abstract

This legal research article examines the concept of “Wasiyat” or will under the Islamic law. Wasiyat, or as also known as a testament or a will, is a legal instrument by which a person makes disposition of his assets or property which takes effect after the death of the testator. It holds religious, cultural and legal importance in the lives of Muslims worldwide.

It is applicable to all Muslims in India except those whose marriage has taken place under the Special marriage act, 1954. In such cases, the provisions of Indian Succession Act, 1925 will apply.

This article contains the historical development of Wasiyat, formalities and essentials required for a valid will, legal grounds for revocation of wills and landmark judgements related to Wasiyat in India.

Keywords

Wasiyat, Will, Heir, Assets, Testamentary Power.

Introduction

The Anglo-Mohammedan term “will” in Arabic means “Wasiyat”. The document containing the will is called Wasiyatnama. 

The Wasiyat, according to Muslims, is a divine institution and has a religious meaning as it finds its origin in the teachings or principles of Islam.

According to Section 2(h) of Indian Succession Act, 1925, “Will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.” [1]

But the testamentary power to make Wasiyat is not unlimited. It is restricted to one-third of the total estate so as not to deprive the legal heirs of their possession.

Thus it can interfere that: –

• Will is the disposition of property made by one person to another
• according to his/ her own wish
• And which will take effect only after the death of the person making the will or Wasiyat.

Background of will or the Origin of the law of Wasiyat

Historical Development:

The historical development of Wasiyat dates back to ancient civilizations, such as ancient Egypt and Rome. During these early times, rudimentary forms of wills existed, primarily focusing on the distribution of wealth and property. As societies progressed, legal frameworks around testamentary instruments evolved, influenced by cultural, religious, and legal factors. 

The origin of Wasiyat is found in Islamic jurisprudence. It is derived from the teachings of the Quran, the primary source of Muslim law and the religious text of Islam, and the Hadith or traditions, which are the sayings or model behaviour of the Prophet Muhammad.

The Quranic verses that discuss inheritance (such as Surah An-Nisa, 4:11-14) provide the basic framework for the distribution of a deceased person’s assets among their heirs. These rules specify the shares of inheritance for various family members, such as spouses, children, parents, and siblings. However, the Quran also recognizes the right of an individual to make specific bequests or bequeath a portion of their wealth to individuals or causes outside the default distribution scheme.

The concept of Wasiyat is mentioned in several Hadiths, where the Prophet Muhammad encouraged Muslims to make a will and bequeath their assets according to their wishes. The Hadiths provide guidance on the conditions and limits of making a valid will, as well as the importance of fulfilling one’s obligations and distributing wealth in a just and fair manner.

Over time, Islamic scholars and jurists further developed the legal principles and rules governing Wasiyat. They studied and interpreted the Quranic verses and Hadiths, applying legal reasoning and consensus to create a comprehensive framework for making and implementing wills in accordance with Islamic law.

Different schools of Islamic jurisprudence have developed their own interpretations and methodologies regarding the law of Wasiyat. These variations can relate to specific details, such as the maximum portion that can be bequeathed, the eligibility of certain beneficiaries, or the distribution of assets among heirs and bequest recipients.

It is important to note that the law of Wasiyat can also be influenced by local legal systems and cultural practices in different regions where Muslims reside. Governments in many Muslimmajority countries have established specific laws and regulations to govern wills and inheritance, incorporating Islamic principles while considering local customs and legal requirements.

Overall, the origin of the law of Wasiyat lies in the Islamic teachings found in the Quran and the Hadith, which have been further developed and interpreted by Islamic scholars and jurists throughout history.

Formalities

No specific formality is required to make a will under Muslim law. Only this much is required that there must be an intention to make the will and the same should be without any force, coercion and undue influence.

The will can be made in following 2 ways i.e. oral or written.

A will may be made either in writing or orally. It is not essential for the will to be in writing. When made orally, no particular form of words is necessary. However only one condition is essential i.e. the intention to make the will should be clear.

Essentials of a Valid Will

The essentials required for a valid will are as follows: –

1. The testator i.e. the person making the will must be competent to make the will.
2. The person in whose favour the will is made i.e. the legatee must be competent to accept the estate or asset.
3. The bequest’s subject must be lawful and valid.
4. The bequest must be within the limited testamentary power of a Muslim.

Now the above-mentioned points are dealt in detail:

1. Competency of testator: – 

The person making the will must be competent to make it.

Every person who is a Muslim, is of Sound mind and has attained the age of majority is competent to execute a will. 

The age of majority, according to Muslim law, is 15 years. But this rule is not applicable in India since in cases of will, the age of majority is governed by the Indian Majority Act, 1875 which provides that the age of majority is 18 years.

A will made under fraud, coercion or undue influence is also not valid.

• Competency of legatee: –

The second essential condition is that the legatee must be competent. Any person capable of possessing property is competent. Sex, color, race, religion or creed are, thus, of no relevance regarding competency of legatee.

The legatee should give assent to bequest. The assent could be express or implied.

• The Subject of will must be valid: –

For making a valid will, the property which the testator wants to dispose by will must be capable of being transferred. 

He must be the owner of the property; he wants to bequeath.

The property for bequest should be in existence at the time of the death of the testator. It is not essential that it should be in existence at the time of making the will.

• The bequest should be within the testamentary power: –

It should not exceed the testamentary power of a Muslim. His testamentary power is limited.

It is limited in two ways. Firstly, a bequest could not be made to an heir until and unless other heirs has consented to it. This was laid down in the case of Ghulam Mohammed v.

Ghulam Hussain.^[2]  

Second limitation is that he cannot make bequest of more than one-third of his property. Although, certain exceptions are there to this general rule.

Revocation of will: –

The revocation of Wasiyat is an important legal concept that allows individuals to modify or cancel their previously made wills.

Legal Grounds for Revocation:

Under most legal jurisdictions, the testator has the right to revoke their will at any time during their lifetime, provided they possess the necessary mental capacity to do so. It is crucial to understand that revocation can be partial or complete, depending on the intentions of the testator.

The following are some common grounds for revoking a will:

1. Express Revocation: The testator can explicitly revoke their will by creating a subsequent document that clearly states their intention to cancel the previous will.

This document should be executed with the same formalities as required for creating a will, ensuring its legal validity. 

• Destruction of Will: Physical destruction of the will is another method of revocation. It can be done by burning, tearing, or otherwise rendering the document unreadable with the intent to revoke the will. However, accidental destruction may not be considered a revocation unless there is clear evidence of the testator’s intent.

• Creation of New Will: When a testator creates a new will, it is presumed that they intend to revoke any prior wills. However, it is essential to explicitly mention the revocation of the previous will(s) in the new document to avoid confusion or disputes. 

• Marriage, Divorce, or Significant Life Event: In some jurisdictions, getting married or divorced automatically revokes any previously made wills, unless the will was made in contemplation of the marriage or divorce. Additionally, significant life events such as the birth of a child or the acquisition of substantial assets may also prompt the testator to revoke or update their will.

Legal Procedures for Revocation:

To ensure the proper revocation of a will, the following procedures are generally be followed:

1. Draft a Revocation Document: The testator should prepare a written document specifically stating their intention to revoke the will. It should include their full legal name, date of birth, and a clear statement revoking all previous wills or specific provisions within them. The document should be signed as well as dated.
2. Witness Requirements: Depending on the jurisdiction, the revocation document may need to be witnessed by two or more individuals who are not beneficiaries or closely related to the testator. The witnesses should be present at the time of signing and should also sign the document.
3. Notify Relevant Parties: It is advisable to inform the executor(s), beneficiaries, and any other relevant parties about the revocation of the will. This can help prevent confusion and potential disputes in the future.  

Landmark judgements

Few significant landmark judgments in India related to the topic of Wasiyat under Muslim law are as follows: –

1. Ghulam Mohammed v. Ghulam Hussain^[3]: In this case, it was held by the Court that a bequest made in favour of an heir is invalid until it is consented to by the other heirs after the death of the testator.
2. Fukan v. Mst.Mumtaz Begum^[4]: In this case, it was held by the Rajasthan High Court that a bequest made in favour of an heir, even if it is one-third of the total property, was not valid until and unless other heirs consented to it.
3. Abdul Manan Khan v. Murtaza Khan^[5]: In this case, again it was held by the Patna High Court held that a bequest made in favour of an heir is invalid until it is consented to by the other heirs after the death of the testator.
4. Yusuf v. Abbas^[6]: This case dealt with the issue of bequest of property to an unborn child. The court held that a will can make a bequest in favor of an unborn child, provided the bequest is contingent on the child being born alive.  
5. Mohammad Altaf v. Ahmed Buksh^[7]: In this case, it was held that no particular form is required for making a will. Only this much is required that there is a clear intention of the testator to make the will.
6. A.M. Khan v. Mirtuza Khan^[8]: In this case, it was held that no particular form is required for making a will. No specific formalities need to be there. The will can be made either orally or in writing. But the clear intention to make the wasiyat should be there.
7. Husen v. Bodha Bibi[9] : In this case, the deceased made his will firstly and then committed suicide. It was held by the court that the will was valid.

These judgments reflect the evolving nature of Wasiyat under Muslim law in India, highlighting the principles of testamentary freedom, allowing Muslims to make wills and distribute their assets according to their wishes, and the rights of Muslim women to make wills, subject to the limitations imposed by Islamic law. 

Conclusion

In conclusion, Wasiyat (will or testament) under Muslim law is a recognized and valid means for Muslims to exercise their autonomy and distribute their assets according to their wishes. While the concept of Wasiyat provides individuals with the freedom to make testamentary dispositions, it is subject to certain conditions and limitations based on Islamic principles.

Muslims can include beneficiaries of their choice in their will, such as family members, friends, and charitable organizations. 

The testator must be of sound mind and free from any coercion or undue influence when making the will. This requirement ensures that the testator’s decisions are made voluntarily and reflect their true intentions.

A Muslim has the right to revoke or alter their will during their lifetime, provided they are of sound mind. This flexibility allows individuals to adapt their testamentary dispositions to changing circumstances or revise their decisions based on new considerations.

After the testator’s death, the will is executed according to the instructions provided. The executor or a competent authority oversees the distribution of assets in accordance with Islamic law, ensuring that the testator’s wishes are respected and implemented appropriately.

Overall, Wasiyat under Muslim law allows Muslims to exercise their rights of testamentary freedom while adhering to the principles of Islamic law, ensuring a fair and just distribution of assets while respecting the rights of mandatory heirs.

References

• Books:

1. Tyabji: Muslim Law, Ed. IV
2. Aqil Ahmad, Mohammedan Law, 289, (27th ed., 2021).
3. Websites:
   1. https://en.m.wikipedia.org/wiki/Wikipedia, last visited on 04/06/2023
   1. https://indiankanoon.org/, last visited on 04/06/2023
4. Cases:
5. Ghulam Mohammed v. Ghulam Hussain, 54 Alld. 98:1932 PC 81
6. Fukan v. Mst.Mumtaz Begum, AIR 1971 Raj 149
7. Abdul Manan Khan v. Mirtuza Khan and Ors., AIR 1991 Pat 154.
8. Mohammad Altaf v. Ahmed Buksh, 25 WR 121 (PC)
9. Mazhar Husen v. Bodha Bibi, 21 All. 91
10. Mohd. Raza v. Abbas Bandi, 59 IA 236
11. Husaini Begum v. Mohammad Mehdi, (1927) 49 All. 547
12. Badrul Islam Ali Khan v. Ali Begun, AIR 1935 Lah 251.

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[1] Section 2(h), Indian Succession Act, 1925

[2] Ghulam Mohammed v. Ghulam Hussain, 54 Alld. 98:1932 PC 81

[3] Ghulam Mohammed v. Ghulam Hussain, 54 Alld. 98:1932 PC 81

[4] Fukan v. Mst.Mumtaz Begum, AIR 1971 Raj 149

[5] Abdul Manan Khan v. Mirtuza Khan and Ors., AIR 1991 Pat 154.

[6] Yusuf v. Abbas, AIR 1995 SC 1632.

[7] Mohammad Altaf v. Ahmed Buksh, 25 WR 121 (PC)

[8] Abdul Manan Khan v. Mirtuza Khan and Ors., AIR 1991 Pat 154. 

[9] Mazhar Husen v. Bodha Bibi, 21 All. 91