Conventionally, a Will, also called ‘testament’ is an implement which enables a person to dispose of his own property to someone whom he wants to give after his death. A Will comes into effect only after the death of the person who created the Will. A Will is a legal declaration of transfer of property by a person after his death. In Islamic law, a Will executed by a Muslim is known as ‘Wasiyat’. The person who executes the Will is called ‘legator’ or ‘testator’ and the person in whose favour the Will is made is known as ‘legatee’ or ‘testatrix’. A very famous Muslim scholar ‘Ameer Ali’ defined a Will from the point of view of Mussalman as a divine institution because its exercise is regulated by the Holy Quran. At the same time, Prophet had proclaimed that such testamentary powers must not exert any damage to the lawful heirs. There is a strict rule in Islamic law that governs the validity of a Will. According to this rule, a Muslim can make a Will in favour of anyone, only to the extent of one-third of his total property. If the Will is made beyond one-third of the property, the consent of the legal heirs is mandatory no matter in whose favour the Will is made.
Muslim law does not expressly propound any specific formalities for the execution of the Will. The intention of the legator plays a crucial role in validating a Will. The intention must be explicit, clear and unequivocal in nature. A Will can be made either orally or in writing or even by gestures.
Oral Will- A simple oral declaration is also considered as a valid Will. It is not abiding to follow any particular process or formality in order to constitute a Will. A mere oral declaration is enough. But the burden to corroborate such Will is very hefty. Eventually, an oral Will has to be proved with extreme fidelity with precision in date, time and place.
Written Will- For a Will to be declared in writing, no specific form is described. A Will is valid even if it is not signed by the legator or attested by the witnesses. The name of the document is immaterial. If it possesses the essential characteristics of a Will, then it Will be treated as a valid Will.
Will made by Gestures- Under Islamic law, a Will may be made by gestures. For example, if a sick person makes an endowment and cannot speak due to weakness, gives a nod with his head in a comprehensive way and if it is understood what he is trying to convey and subsequently, he dies without regaining his ability to speak, the bequest is valid and lawful.
If a Muslim desire to make a Will of his property, he is allowed to do so only to the extent of one-third of the bequeathable property. This extent of one-third is calculated after the expenses of his debts and funeral etc. Any bequest exceeding the limit of one-third Will not come into effect unless the heirs of the legator give their consent to it. In case the heirs do not give their consent, then the bequest Will be valid to the extent of one-third only and the remaining two-thirds Will be transferred through intestate succession.
A Muslim who does not has any heir may bequest his property to anyone and in whatsoever amount he may desire to give. But if a Muslim bequest his property to a non-heir or a stranger, then the consent of the legal heirs is of utmost significance if the property exceeds the one-third of his total property.
The reason is to protect the rights and interests of the legal heirs which may adversely affect in case of such bequest. If heirs give their consent to give an entire property to a stranger, the Will is valid otherwise it is valid to the limit of one-third. Furthermore, the second restriction comes into action only where the legatee is one of the heirs of the legator. Whether the property bequeathed is one-third or less, the consent of the other legal heirs of the legator is a dominant factor in order to establish a valid Will. The ground of this rule is that a legator may make a bequest in favour of one of the legal heirs giving more precedence to him which may result in a feeling of jealousy and enmity among the other heirs.
On the other hand, Shia law doesn’t discriminate between an heir or a non-heir. A bequest can be made in favour of anyone till the extent of one-third of the property is treated to be valid. Thus, it can be concluded that Shia law provides ample powers to make a Will as compared to Sunni law. Generally, a Will has to be construed in accordance with the rules laid under Islamic law and scrutinizing the language and intention of the legator.
A Will is a document which is made by a person during his lifetime and comes into effect after his death. So, a Will must be interpreted to accomplish the intentions of the legator after his death. At certain times, the language may not be clear and the intention of the legator is ambiguous. In such circumstances, it is left to the discretion of the heirs to elucidate such Will in whatever way they want. For example, a legator bequests a house and a shop for his two sons but doesn’t specify what is given to whom. Here, the content of the bequest is perplexed. Thus, it is up to the option of heirs to mutually decide who wants to take what.
I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.
If you are interested in participating in the same, do let me know.
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