Will Wasiyat Under Islamic Law

By Dr. Samreen Hussain

Assistant Professor- Law
DR RMLNLU- LKO
Important Defintions

🞂 1. willl/ wasiyat/ legacy/ Testementary succession- An

assignment of property to take effect after one’s death
( Durrul Mukhtar)
🞂 Legator/ testator- person who can make will
🞂 Legatee/ Benificiaries- in whose favour Will is made.
🞂 Wasi/ Excecutor- person appointed for excecution of Will by
the Testator
🞂 Probate- means copy of the will certified under the seal of a
court of a competent jurisdiction. Probate of a will when
granted establishes the Will from the death of the testator and
renders valid all intermediate acts of the executor as such.
🞂 Corpus/Ain – means absolute right of ownership of property
and its for unlimited period
🞂 Ususfruct/ Manafi- use or enjoyment of property for a
limited period.
🞂 Tamlik is the term of general import and may be applied to
a gift , sale or to a will.
🞂 Heirs- any person related to deceased by marriage or blood.

🞂 Under Islamic Law of ownership both corpus

+ usufruct should be there for complete ownership. If only
one vested in a person it is a lesser ownership.
Salient features of property under Islamic Law

🞂 No distinction between moveable or Immoveable

property
🞂 No distinction between self acquired and joint Family
Property
🞂 No Birth right of heirs in the Property
🞂 No concept of Joint Family
🞂 Same law of Succession for both males and females
🞂 Person till Alive is absolute owner of his /her Properties.
So the heirs are presumptive or would be heirs and
cannot deal with the property during the lifetime of the
person.
Types of Succession
🞂 Testamentary Succession
🞂 Intestate succession
Both are governed by Shariat Law.
Section 57 of Indian Succession Act 1925 applies only to
Hindu, Sikh Buddhist, Jain and Christians.
Introduction

🞂 Every Muslim Has Absolute power to make will.

🞂 According to tyabji
“ will is a the legal declaration of the intention of a
muslim with respect to property which he/ she desires
to be carried into effect after his death.”
Formalities of Will
1. Testator must be competent
2. Intention must be clearly expressed- oral or written
3. Must be intended to operate after his/her death
4. The legatee/ benificary must be competent to take the
benefit.
5. The qualitative requisites of the subject matter of the
will must be satisfied
6. The quantitative limits of the property must be
observed.
Forms of Will

🞂 A will can be
1. Oral
2. Written
The essential is the presence of two witness in
accordance to Islamic law.
A written will must be signed by the witness else will not
be a valid will.
1. Who can make Will or be a legator

Any person who is

1. Muslim
2. Sane – A will made by person of unsound mind shall remain void even if
he recovers and stay sane till his death
3. Major- under islamic law 15 years is taken as majority but in india in
genral a person needs to be above 18 for the purpoise of making Will.
4. Free consent
Though a will made in minority if ratify in majority becomes valid.
An apostate can also make will after the enactment of Caste disabilities
Removal Act 1850
A person who is under debt need to first discharge his debt then only the
property will be distributed among the beneficiaries
An insolvent cannot make a will.
2. Comptency of the Legatee
🞂 Any person who is capable of holding property- male or
female Muslim or non Muslim- having legal personality
🞂 An unborn child- under sunni law should be born within
6 months of death of legatee- under shia law the period
is 10 months
🞂 Also under shia law- if usufruct of the property is
bequeathed to two or more person- the first of them must
exist when the testator dies and other should precede the
first. ( Held in Nawazish Ali Khan V Ali Reza khan, AIR
1948 PC134)
3. Subject Matter of the Will
🞂 Any property- moveable or immoveable can be subject
of the will.
🞂 Corpus and usufruct can be validly bequeathed to
different person. For example A bequeaths his house to
be used by X in his lifetime and whole of the property
to Y after X death
🞂 For usufruct to be valid – a duration to be provided.
🞂 It is not necessary that property bequeathed must exist
at the time of will but should be in existence at the
opening of Will.
🞂 Example
1. A writes in his Will that he will give plot X to B
which he will buy in Jaunpur. A never buys the land.
B cannot asked the plot to be purchased but if A buys
the land it will be given to B.
2. A bequeaths a house to b. he later on pulls down the
house. B will get nothing.
4. Quantitative limit imposed on the
Property
🞂 Quran did not Put any Ceiling on the quantum of the
Will
🞂 But the jurist after reading the verses on Will and
Inheritance together laid down the legal limit of 1/3 of
the property. Meaning a Muslim cannot can only give
1/3 of his property in will.
🞂 This 1/3 is calculated after deducting any debts due to
him and funeral expenses.
🞂 The will which is made in excess of this limit is not
regarded to be void but its enforceability depends upon
the consent of the heirs of the deceased.
🞂 Under Sunni law- the consent of the heirs need to be
obtained after the death of the legator.
🞂 Under shia law – consent can be obtained before or after the
death of the legator. Once consent given cannot be retracted.
🞂 If few heirs give and few doesn’t then the excess of 1/3 can
be enforced to the extent of the shares by inheritance of the
consenting heir.
🞂 Conditions in which limit can be exceeded
1. No heirs of the testator
2. Consent is given by all the heirs
3. Where the only heir of testator is husband or wife.
Bequeaths on the heirs of deceased
🞂Under Sunni Law
A person cannot bequeath any property not even 1/3 to
his/her own heirs. If he wants to bequeath then all the
present heir should give consent after the death of the
testator.
Case:- Bhullan v Ehsan Ilahi ( A father bequethed certain
property to his son. His other two heirs daughter and
wife did not give consent. No will)
Under Shia law
A shia can bequeath 1/3 of his property to anyone
including the heir.
Disqualification
🞂 Under Sunni law
If the legatee causes death of the legator the will in his
favour becomes void- accidental or intentional both.
Under Shia law
Only if the legatee causes intentional death then only
Will becomes void.

Secondly will of a person who commits suicide

Under Sunni law-void
Shia law-valid
Lapses
🞂 Under sunni law
Death of the legatee in th lifetime of testator results in
automatical lapse.
Under Shia law
Only if the teststor has revoked the will. If not then the
heirs of the legatee will get the property.
Abatement of legacies
🞂 When the bequeath is more than the 1/3 and the heirs
does not consent the sunni law provides that the
bequeath should be reteably reduced or abated.
🞂 For example A a suuni Muslim gives rs 3000 jointly to X
and Y and 3000 to C. the 1/3 limit permits him to give
total of 4000.
Now total bequest come to rs 6000- now in first step we
will assume that amount is rs 4000, 2000 to be
disregarded. In this 4000
A+B=3000 so it shall become 2000 i.e. 1000 each
C=3000 will become 2000.
🞂 2. A suuni Muslim leaved behind property of 75,00. he
executes a Will giving 30,000 to A and 20,000 to B.
now the Bequest need to be proportionally reduced.
Total assets- 75,000
Bequeathable 1/3 = 25,000
Total amount given under = 50,000
After rateable deduction
To A= 15,000 (earlier amount 30,000)
To B= 10,000 (earlier amount 20,000)
🞂 Under Shia law- if bequeath exceeds 1/3 and is for two or more than two legatee
and hieis does not consent, the rule of chronological priority is followed.
Meaning the legatee name which appears first in the bequest will be given then
the next and so far the 1/3 limit exhausted
🞂 For Example

A testator leaves behind asset of 75,000. he gives 10,000 to A, 15,000 to B and

40,000 to [Link]
Total Assets= 75,000
Beqearhable 1/3= 25,000
To A= 10,000- given the whole amount
To B = 15,000- given the whole amount
To C= 40,000 – nothing as limit is exhauted.

Exception to this Rule

If two person are given 1/3 each then the later Bequest Prevails.
Difference Between Sunni and shia
law
Sunni Law Shia lasw
No bequeath to heirs Allowed, not Bequeath to heirs to limit 1/3 allowed.
even 1/3 Consent can be given before or after.
Consent of heirs after the death of Born till 10 monts from the date of
testator testator death
Child in the womb- will valid if born Only when intentional death then
within 6 months cannot take property.
Legatee causing death cannot take
property