“Bequeath one third and one third is much, for if thou leavest thy heirs free from want, it is better than that thou leavest them in want, bagging of (others) people; and thou dost not spend anything seeking thereby the pleasure of Allah but thou art rewarded for it, even for that which thou puttest into the mouth of thy wife.”[1]
Prophet Mohammed (p.b.h)
The right to dispose of property by will at death is of ancient origin. It existed in ancient Egypt, Babylon, and Assyria and was known to the Hebrews, Greeks, and Romans of antiquity. Instrument resembling modern wills were evolved under the Justinian Code which was promulgated during the later year of the Roman Empire. [2]
Muslim Will–
The word used in Muslim Law to denote a will is wassiyat. This word has various meaning besides a will, it also signifies a moral exhortation. Amir Ali[3] says, “A will from the Muslim point of view a divine institution since its exercise is regulated by the Quran…………. At the same time, the prophet has declared that the power should not be exercised to the injury of lawful heirs.”[4]
The leading authority on the subject of wills is the Hedaya (Guide), which was translated from the original Arabic by four Moulvis or Mohammaden lawyers and from Persian into English by Charles Hamilton, or by order of Governor Warren Hastings when he was governor-general of India.[5] The Hedaya was composed by Shaikh Burhan-ud-din ali who was flourished in the twelfth century. The author of the Hedaya belonged to the Hanafi schools, so it is the principles doctrines of that school that he has principally recorded in that work.
A Muslim may dispose of his entire property by gift intervivos, He also tie down his entire property in perpetuity by creating a wakf for his aal-aulad. But his testamentary power is limited to the disposal of only one-third of his property.[6]
Muslim Law of will and the Indian Succession Act, 1925-
A Muslim is immune from the application of the Indian Succession Act, 1925. The provisions of the Indian Succession Act, 1925 are not applicable in the case of Muslims. However, if a Muslim registered his marriage under the Special Marriage Act, 1925, he cannot immune from the provision of the Succession Act, 1925.[7]
We would discuss the Muslim law of wills (wassiyyat) under the following heads:
- Competency of Legator
- Competency of Legatee
- Condition for a valid will
- Forms of wills
- Subject matter of wills
- Revocation of will
- Death-Bed Business (Marz-ul-Maut)
1.COMPETENCY OF THE LEGATOR
A legator who fulfils the following qualifications can make a valid will:-
- Age of majority
Every Muslim who is sane and rational is entitled to make a will. The testator must also be major. Under Islamic law, the majority is attained at puberty, and the presumption is that a Muslim attain majority on the completion of the fifteenth year.[8] In India, however, under the provisions of the Indian Majority Act, the majority, for the purpose of making a will is attained at eighteen and not at fifteen.[9] So, Indian majority Act, 1870, provides, a person is deemed to have attained the age of majority 18 or 21 years and only questioning related to marriage, divorce, adoption, and religion or religious usages, are excepted from its operation.[10]
- Will made by guardian-
Under Muslim law, a will cannot be made by the guardian. A will made by the guardian on behalf of the minor or insane will be treated as void.[11]
- Validity of a will made by the person who has attempted suicide-
Under Shia law, a will made after the testator who was injured by his own deeds or who administered poison for committing suicide will be invalid. A Shia Muslim can validly make a will and later on commit suicide. A will made by a person when he was a minor but after attaining majority he ratified the same, will be treated as valid.[12]
- Soundness of mind-
Tyabji says that a will made by a testator whose mind is unsound does not becomes valid by his subsequently becoming of sound mind. A will made by a person while of a sound mind becomes invalid if the testator subsequently becomes permanently of unsound mind.[13]
2.Competency Of The Legatee
A bequest can be made by a muslim in favour of any person capable of holding property, the religion of the legatee being immaterial. A bequest can also be made to an institution or for a religious or charitable object which is not opposed to Islam.[14]
It can, therefore, be said that a will can be made in favour of the following person:
- An individual
- A minor
- An insane
- An institution
- A non-muslim
Fatwai Alamgiri and Hedaya says that for the validity of a will the legatee must be in existence. It has been judicially said that the legatee’s existence at the time of the legator’s death.[15]
- Bequest in respect of Unborn persons-
A will can be made in respect of a child who is in the mother’s womb and is born within six months from the date of bequest.[16]
- Bequest in respect of Murderer-
Before the advent of Islam, the main source of inheritance amongst Arabs was related with the blood feud. It was, therefore, said that a murderer was not qualified to inherit the property. Under Muslim Law, a person who has killed the legator is disqualified from inheriting the property given by way of will. Under Hanafi and Ismaili law, the intention of the slayer is immaterial. Under Ithna Ashari Shiite law a person will be disqualified to inherit the property by way of will if he committed the murder intentionally. Under Hanafi law, a will in respect of a person who has caused the death of the testator can be validated if the heirs given their consent.[17]
- Bequest in respect of charity-
A Muslim is fully competent to make a will for charitable purposes. Under Muslim law, certain restrictions have been imposed on the right of the legator to make a will depriving the right of the heirs. It was said by Calcutta High Court that the restriction against will to heirs cannot be got over either ‘under colour of a religious bequest’ or by having a resource to a ‘Partition deed’ between the legator and his heirs.
- Legatee pre-deceasing testator-
Under Hanafi law, if the legatee has died before the legator, the will carries no force and the heirs of the legatee shall have no right in the property. Ithna Ashari law says if legatee died before the legator death, legator can revoke the will, otherwise, the heirs of the legatee shall have the right of inheritance. It was said by Allahabad High Court[18] that where the legator is alive the legatee has died, and the legatee has left no heirs, the bequest shall lapse automatically.
- Joint Legacies-
Where the testator has bequested the property jointly to several certain or ascertain persons, the bequested property will be divided equally amongst all the legatees.
3.Conditions For a Valid Will
Under Muslim Law, the following conditions are necessary for a valid testamentary disposition of the property. These conditions are, however, not applied in the case of Ithna Ashari Shiite Muslim-
- Will can be made only of one-third of the property-
Under Islamic Law, a Muslim can have any right over the property of only dispose its one-third part and in this way Islam has recognized the rights of the heirs in the property of his/her parents. A bequest to any amount exceeding the third testator’s property is not valid. The property is to be divided into thirds- those whose rights were prior in time, taking twice as much as those who had just acquired them, i.e. the customary heir took 2/3 and the Islamic heir 1/3.
- Bequest to heir- its legality–
If a man makes a bequest in favour of a person of a part of his heirs. It is not valid, because of a traditional saying of prophet, “God has allotted to every heir his particular rights”. But where the legatee is found to be an heir of the legator and others heirs of the latter assert to the will, it becomes valid and can be enforced. Under Ithna Ashari law, a will can be lawfully made in favour of an heir and in no case is such a will ipso facto invalid.
- Testamentary disposition of more than one-third of the property- Its consequences
- Where the testator has disposed of more than one-third of the property by way of will the will is not void. It is only invalid. Such a will can be legalized after obtaining the consent of the heir[19].
- The heir may give their consent expressly or impliedly.[20] Under Hanafi law, the consent of the heirs has to be obtained after the legator’s death. The policy of this rule appears to keep the required consent free from undue influence.
- The heirs who have given their consent will be bound to the extent of their share.[21] The law says that even an insolvent heir can give his consent.
- A person may sign will merely as a witness without expressing his consent.[22]
- The heir is missing, the testator may dispose of the whole of his property by way of will.[23]
- The legator can make a will which shall be partially applicable to heirs and partially to non-heirs. The property may be joint and severable. Under such circumstances, the non-heir will get the benefit according to the will irrespective of other heirs consent. However, the heir can claim ownership and possession only if the remaining heirs have given their consent.[24]
Shia law- There is not much difference between Shia and Sunni schools on the point discussed above. Under Shia law, a testator can dispose of more than one-third of the property, the heirs are fully competent to give their consent during their lifetime and it need not be ratified after his death.
- Limitation to make a will-
A will made for non-religious purposes will not be valid. A Muslim is not permitted to make a will for the construction of Jewish synagogues or Christian churches. Similarly, he is not allowed to make a will for translating the Taurit or Injeel. Under Shia law, a person is not allowed to make a will for directing that so much of his property should be given to named person for regarding the Quran over his grave.
Under Sunni law, the consent given by an heir is final and it cannot be revoked later on. Under Shia law, the position is slightly different. If the heir has given through a mistake as to the value of the bequest, the decree will be awarded for the amount that they admit.
4.Forms of will-
Muhammadan law does not prescribe any particular form for the making of wills. The will of a Muslim need be in writing[25], and oral will is perfectly valid; but in the majority of cases, wills are, for obvious reasons, in writing. If the will is in writing it need not be signed, and if signed; it need not be attested. So long as the intention of the testator is reasonably clear, the testament takes full effect[26]. If a case before the Privy Council a letter written by a testator before his death and containing directions as to the disposition of his property, was held to constitute a valid will.[27]
Even, a will may be made by gestures. The Fatwai alamgiri says, “A sick man makes a bequest being unable to speak from weakness gives a nod with his head. And it is known that he comprehends what he is about- If his meaning be understood and if he dies without regaining the power of speech, the bequest is lawful.”[28]
For the verse in the Koran regarding witnesses is considered merely as a recommendation and is not mandatory.
5.Subject Matter of Will-
A person is allowed to make the will of any form of property. The corpus (ayn) and usufruct (manafi) both may be bequeathed. A legato may validly make a will of service or waqfs of a slave, or use, or rent of house for a definite or indefinite period.[29] The only condition for making a will is that the property must be in existence at the time of the legator’s death and it must be capable of being transferred. It is legitimate on the part of the testator to make the will of the right to occupy a house during a future period of time. The testator can also make a will of the rent be received in the future.[30] It is not necessary on the part of the testator to make the will of usufruct and the property to one person. He is fully competent to bequeath the usufruct to one person and the property itself to another person. Under Muslim law, a will must be free from any condition. Where the legator has attached a condition to the will, the will shall be not void. It shall take effect as if there was no condition attached to it.
Muslim law also does not recognize contingent wills or wills in the future. The law applicable to gifts is also applied in such cases. A testator is fully competent to make a will of his property, under which he will have the right to enjoy the fruits of the property during his lifetime and after his death, his property will be taken by persons who are entitled to take possession of the property. Similarly, a Muslim may dispose of his property by way of trust. Under the trust system, the settler continue to enjoy the fruit of the property during his lifetime. The property only after the death of the testator. In fact, this kind of disposition of property is not recognized by the Muslim law. It may be noted here that there is a difference between usufruct and corpus. Usufruct means the total benefit to be derived from the property. Corpus is merely a husk.
6.Revocation of Will
A testator may revoke his will or any part of it any time, either expressly or by implication. Similarly, a testator is also free to make any addition to the subject of the bequest is such that the subject of the bequest cannot be delivered with the addition. Then the bequest stands revoked.[31]
- Express revocation-
If a testator makes a bequest of some property to a person, and by a subsequent will, he bequeaths the same property to another person, the first bequest is revoked. But bequest of the same property to one person in the earlier portion of the will and to another person in the later portion of the will does not revoke the earlier bequest. But both the legatees share the property equally. A will may be expressly revoked by tearing it off or by burning it. It seems that mere denial of a will, will not operate as its revocation.
- Implied Revocation-
Any act inconsistent with the bequest will go to revoke the will. Thus, an act which results in the extinction of the subject matter of the bequest, or extinction of the proprietary rights of the testator will impliedly revoke the will. For instance, bequest of a plot of land is revoked when the testator builds a house on it; or bequest of a house is revoked when the testator sells or makes a gift of it to another.
7.Death-Bed Business (Marz-ul-Maut)
The death bed gifts are recognized in many systems of law. The different schools of Muslim law also take divergent views on the marz-ul-maut gifts. The Malikis take the view that the marz-ul-maut gifts are void. The hanafis and the Shia hold that such gifts to the extent of one-third are valid.
Meaning and rules regarding to Marz-ul-maut-
A gift must be deemed to be made during marz-ul-maut. If it was made “under pressure of the sense of the imminence of death”. The Muslim lawgivers hold the view that if a disease continues for a period of more than one year then it cannot be called marz-ul-maut if it reaches a stage where the apprehension of death is genuine or death is highly probable. When a person is in imminent fear of death whether from disease or any other cause. So that in case of a disease of an illness the man is so broken by it as to be incapable from conducting his ordinary avocations outside his house; for example, a Fakih (jurist) from going to the mosque, a tradesman to his shop, a woman from attending to her indoor occupation. It is marz-ul-maut.
Another test is thus laid down:-
When the malady has become so severe as to make it permissible for the sufferer to offer his prayers without standing up, it must be regarded as illness of death. Hectic fever, hemorrhage, bilious, bloody swelling, and fetid purgings have been considered to be marz-ul-maut by Muslim authorities. The Shia authorities are to the same effect, Temporary fever, headache, ophthalmia and tubercle on the tongue are not marz-ul-maut. So an apprehension in the mind of an old man that he may die suddenly at any time is not such a feeling of imminent death which may be called marz-ul-maut.
It is the unique feature of marz-ul-maut gifts that it must fulfill all the requirements of a valid Hiba, including the delivery of possession.[32]
Acknowledge of Debts
The Muslim authorities take the view that a declaration or admission of liability by a Muslim is binding not only or the person, who makes the declaration or admission but also on his heirs. When the only proof of a debt or debt or liability of the deceased is the death- bed acknowledgment of it, then the Muslim law-givers rank it, in respect of priority, midway between other debts and legacies. This means that other debts have priority over the death-bed acknowledgment. Such debts have priority over legacies. A divorce pronounced by a person, who is suffering from a mortal malady, cannot deprive the wife of her right of inheritance.
CONCLUSION
Before the arrival of Islam in Arab, there was anarchy in all fields of life, Prophet Mohammad changed the course of society and the life of people, tradition and law also changed. Will also come under these type of laws, Islam made the all laws with reasonable arguments and in the welfare of people. This is why they thought about every aspect of life. It will the provision of one third made with a view to not create jealousy among brothers, marz-ul-maut, Revocation, and other minor to major provision include with the intention to create a peaceful society.
[1] Muhammed Ali, Manual of Hadith (Lahore, 1944), 334-5, No. 2
[3] Amir Ali : Mohammadan Law, Volume I
[4] Supra, 2
[5] M. Hidayatullah and Arshad Hidayatullah, Mulla, Principle of Muhammadan Law (N.M. Tripathi private Ltd. 19th Edition 1996)
[6] Paras Diwan, Modern Muslim Law (Allahabad Law Agency, Faridabad)
[7] Supra, 2
[8] Asaf A.A. Fyzee, Outline of Muhammadan Law, (oxford university press, Delhi, Fourth Edition 1976)
[9] Ibid
[10] Supra note 2
[11] Ibid
[12] Ibid
[13] Supra note, 2
[14] Asaf A.A. Fyzee, Outline of Muhammadan Law, (oxford university press, Delhi, Fourth Edition 1976)
[15] Supra note, 2
[16] Ibid
[17] Supra note, 2
[18] Hussain begum v. Mohammad Mehdi, (1927) 49 All 547
[19] Bafatun v. B. Khanum (1903) 30 Cal LR 1156
[20] M. Hussan v. Aishabai (1934) 3 Bom LR 1156
[21] Muhammad Ata v. Hussain Ali, AIR 1944 Oudh 25
[22] Qader jehan v. Fazal Ahmed (1928) 26 All LJ 69
[23] Mohammad Ameenoodeen v. Mohammad Kubeerooden (1825) 4 S.D.A Cal 4
[24] Ghulam Jannat v. Rahmat Din, Air 1934 Lah 427
[25] Baboo Beer Pertab v. Maharaja Rajendra Pratap (1876) 12 M.I.A
[26] Asaf A.A. Fyzee, Outline of Muhammadan Law, (oxford university press, Delhi, Fourth Edition 1976)
[27] Mulla, D.F, Principles of Mohammeden law
[28] Paras Diwan, Muslim in Modern India
[29] Hamilton : Hedaya
[30] Muhammed Hussain v. Aishabai (1934) 36 Bom LR 1156, 1163
[31] Paras Diwan , Muslim law in Modern India
[32] Aqil Ahmed, Textbook of Mohammeden law (Central law Law Agency, Allahabad, 26 Edition 2016)
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