When we talk about the notion of Will in Muslim Law, we’re talking about a type of deal between two opposing tendencies. The first is the Prophet’s belief that following a person’s death, his property must be handed to his heirs, and that this idea is recognized as divine law, and that any violation of it is considered undesirable. The other is that it is every Mussalman’s moral obligation to make right arrangements for his property after his death.
A Will or Testament, also known as a Wasiyat, is an instrument through which a person makes a disposition of his property that will take effect after his death.
Will is defined by Tyabji as the transfer of a right of property in a specific object, a profit or advantage, or a gratuity to take effect upon the testator’s death.
A Will is distinguished by the fact that it takes effect after the testator’s death and is revocable.
Unlike any other disposition (such as a sale or gift), the testator retains complete control over the property bequeathed while he is still alive: the legatee or beneficiary under the Will is prohibited from interfering in any way with the legator’s power of enjoyment of the property, including its disposal or transfer (in that case the Will becomes revoked).
Who can create a Will?
- A Will can be written by any major Muslim (above the age of 18) who is of sound mind. The Indian Majority Act of 1875 governs the age of majority, which states that a person reaches majority at the age of eighteen (or on completion of 21 years, if he is under supervision of Courts of Wards). As a result, the testator must be 18 or 21 years old at the time of the Will’s execution. The testator must be of sound mind when executing a Will (that is, when it is being written).
- According to Muslim law, the legator must have a thoroughly disposed mind, which means he must be capable of completely understanding the legal repercussions of his actions not only at the time of the declaration, but also for a long time thereafter.
- A Will that is performed under the fear of death is lawful, while a Will that is executed after attempting suicide is void in Shia law.
- A minor is incapable of making a Will (such a Will is invalid), but a Will made by a minor can be validated by his ratification after he reaches the age of majority.
- A Will obtained by undue influence, force, or fraud is invalid, and the court takes extreme caution in allowing a pardanashin lady’s Will to be accepted. As a result, a legator must execute a Will with his voluntary permission.
- At the time of creating or executing the Will, the legator must be a Muslim. A Will is only effective after the legator’s death; it is only a statement on the basis of which the legatee may receive the property in the future.
- Under Muslim law, a Will executed by a Muslim who ceases to be a Muslim at the time of his death is still valid.
To whom can a Will be made?
- A legatee under a Will can be any individual capable of owning property (Muslim, non-Muslim, lunatic, minor, kid in its mother’s womb, etc.). As a result, a bequest can be taken regardless of gender, age, faith, or religion.
- A legitimate bequest can be given for the benefit of a legal person or an entity (but it should not be an institution that promotes a religion other than the Muslim religion viz. Hindu temple, Christian church etc.).
- Under Islamic law, a child in a mother’s womb is considered as a live person and hence is a competent legatee under two conditions. To begin with, he must be alive in the mother’s womb at the time of the Will’s pronouncement. Second, under Sunni law, the kid must be born alive within six months after the Will’s execution, and under Shia law, within ten months.
- Only after the death of the legator does a Will take effect. As a result, an avaricious and impatient legatee may kill the legator in order to get possession of the property as quickly as feasible. A legatee who murders or causes the death of the legator, whether purposefully or inadvertently, is not permitted to take the Will or the property. However, in Shia law, if a legatee unwittingly, recklessly, or accidently kills the legator, he is competent to inherit the property and the Will is considered genuine.
Formalities of a will:
No particular requirements for the execution of the Will are stipulated in Muslim law. When it comes to certifying a Will, the legator’s purpose is vital. In order to be effective, the aim must be plain, unambiguous, and unmistakable.
Wills can be made orally, in writing, or even by gestures.
A legal Will can also be made by an oral statement. It is not necessary to follow any certain procedure or formality in order to create a Will. It is sufficient to make an oral declaration. However, the burden of proof for such a Will is heavy. An oral Will must eventually be established with high authenticity in terms of date, time, and location.
There is no formal form for declaring a Will in writing. Even if the legator does not sign or the witnesses do not swear to the Will, it is legal. It makes no difference what the document’s name is. It will be recognized as a legitimate Will if it has the fundamental qualities of a Will.
A Will can be formed with gestures under Islamic law. For instance, if a sick person makes an endowment but is unable to speak owing to weakness, provides a broad nod with his head and it is understood what he is attempting to transmit, and then dies without regaining his capacity to speak, the bequest is legal and legitimate.
Subject matter of will:
Any sort of property, whether physical or intangible, mobile or immovable, can be the subject of a Will. However, a legator can only bequeath a property in his Will if he owns it at the time of his death.
It is necessary for the property to be transferred.
A property donated under a Will may or may not exist at the time of its execution, but it must be in the legator’s possession at the time of his death. This rule’s rationale is pretty straightforward. A Will takes effect after the legator’s death, and property is transferred to the legatee from the date of the legator’s death, not the date of the legatee’s death.
A Will takes effect after the legator’s death, and property is transferred to the legatee from the date of the legator’s death, not the date of execution.
Revocation of will:
The legator has an emancipated right in Muslim law to withdraw the Will or any portion of the Will he has executed at any moment. Similarly, he can make a fair addition to the Will.
A legator can expressly or implicitly revoke the Will.
An oral or written express revocation is possible. For example, if a legator bequeaths some of his property to one person and then bequeaths the same property to another person in a future Will, the first Will is immediately annulled.
If a legator burns or shreds a Will he has executed, the Will is considered to be expressly cancelled as well. It should be emphasized that just denying a Will does not imply that it has been cancelled. The legator must take an action that expresses his unambiguous desire to revoke the Will.
Any conduct by the legator that is contradictory to the bequest will cause the Will to be revoked. In other words, an act that results in the annihilation of the bequest’s subject-matter is seen as an implicit revocation of the Will.
Probate of a will:
The Indian Succession Act, 1925 defines a probate as follows: “Probate” implies a copy of a Will certified under the seal of a court of competent jurisdiction, along with a grant of administration to the testator’s assets.
A Will states a person’s desire for his intentions to be carried out after his death by particular people who are normally mentioned in the Will. The executors are the people specified in the Will to carry it out. A probate is the process of certifying a Will under the seal of a court. Finally, the Will is established and authenticated by probate. A probate is definitive confirmation that the Will was properly executed, is authentic, and is the final Will of the testator.
Who is eligible to petition for a probate?
Only the executors listed in the Will have the authority to apply for probate. The executor must submit an application for probate under the court’s seal, certifying the Will. If there are many executors, probate might be awarded to them all at once or when the application for probate is filed. If no executor is named in the Will, the court will just issue a basic letter of administration rather than a probate.
How to apply for probate?
- An application for probate must be made to the court by the executor. The actual Will must be attached to the application by the executor. The executor must include the names and addresses of the deceased’s lawful heirs in the application so that they can be notified before the Will is probated.
- The petitioners must normally prove the facts of the testator’s death, which is usually done with the assistance of a death certificate issued by the local authorities. The executors must also prove that the Will presented to the court is the deceased’s most recent Will.
- Following the submission of the application, it is confirmed, and notices are sent to the legal heirs of the dead informing them that an application for probate has been received by the court. A wide notice is also published, providing anyone the opportunity to protest to the probate grant. The court will issue the probate if no objections are filed. If the court receives objections to the probate being issued, the application becomes a testamentary litigation.