Introduction
A will to be called a testament is a tool that enables a person to dispose of his property to his legal heir after his death. The validity of a will is subject to strict restrictions in Islamic law, and a Muslim is only permitted to cause awl in the amount of one-third of his whole property in the name of anybody he chooses. If the will is for more than one-third of the property, the consent of the legal heir is mandatory irrespective of the person to whom the property is been disposed of. It is important to note that if the Muslim is married under the Special Marriage Act, of 1954[1] then the will made by him will be regulated by the Indian Succession Act, of 1925[2], not the Muslim laws.
A will that has been carried out by someone who has tried suicide is deemed void in the event that the person who made it commits suicide. The fundamental rationale behind this regulation is that someone who has attempted suicide cannot be held in his normal mental state; instead, he is considered to be mentally sick and disturbed.
A will in Islamic laws can be in writing, orally or made by gestures. It is possible that a person is sick and not in the condition to speak but can gestures and agree on the matter by nodding their head then the will made by him is valid if he dies without regaining his voice.
Essentials of a will
There are certain criteria to be fulfilled in order to make a will valid under Muslim law:
- The person making the will should be a Muslim
- The person making the will should be of sound mind.
- The person making the will should be of legal age. According to the Indian Majority Act[3], this age is 18 in most situations and 21 if the person is under the control of a court of wards. Any Will signed by a minor is regarded as void and unenforceable.
- The voluntary consent of a legator is required for executing a Will. Any Will discovered to have been executed by a legator under force, undue influence, or fraud is null and void, and the legatee is not entitled to every property under that Will.
Form a will can be made
In Muslim law, wills can be made in three ways the ways being:
- Oral Will- A will can be made orally, and the declaration will be valid in the eyes of the law
- Written Will- It is a will that is declared in written form, even if there exists no sign of the legator and the witness it will still be valid if it fulfils the criteria of a valid will.
- Will made by Gestures- In Muslim law, the will can also be made with the help of gestures. A person can give consent by nodding their head or making signs.
What Law says
It’s crucial to understand that Muslims are only allowed to make a will for one-third of the assets that can be bequeathed. This one-third figure is calculated after the costs of his debts, his funeral, and other expenses have been subtracted. Any donation in excess of one-third of the legator’s inheritance must have the heirs’ consent in order to be carried out. The bequest will only be valid for one-third of the estate if the heirs decline to agree, with the remaining two-thirds transferring by intestate succession.[4]
If a Muslim dies without children, he or she may leave their possessions to whomever he or she chooses, in whatever quantity he or she pleases. The legal heirs’ consent is necessary if a Muslim bequeaths property to a non-heir or a stranger if the value exceeds one-third of his whole inheritance.
This can be seen in the ruling of the Hon’ble High Court in the matter of Ghulam Mohammed v. Ghulam Hussain 1932 P.C. 81[5]
According to a ruling, a bequest in favour of one heir is not legitimate unless the other heirs agree to it after the testator’s death. After paying for burial expenses and obligations, no Muslim is permitted to leave more than one-third of his net assets as a legacy. The agreement of additional heirs is required if the amount left behind exceeds one-third. The approval of heirs is not necessary in both cases when it comes to a non-heir (stranger).[6]
Even a Muslim cannot exclude other legal heirs and bequest the property to a single legal heir. It was seen in the matter of Husaini Begum v. Mohd. Mehdi[7], It was held that according to the rule, a testator may leave a bequest to an heir provided it doesn’t total more than one-third of his assets. Without the approval of the other heirs, such a legacy is lawful; but, if it surpasses one-third, it is invalid without the approval of all heirs. Before or after the testator’s death, this consent may be provided. Therefore, it is invalid for a Muslim to leave all of the property to one heir at the expense of all other heirs.[8]
Similarly, Where the testator makes a bequest to both heirs and non-heirs by the same legacy, the legacy will not be invalid in its whole but will take effect with regard to non-heirs in the absence of heirs’ permission. The norm is that the Will will be given the fullest effect that it is capable of as much as feasible.
For example, The non-heir will get one-third of the estate if the testator leaves his whole estate to an heir and a non-heir without the consent of the heirs, and the remaining two-thirds will transfer to the testator’s heirs by inheritance.[9]
These facts are backed by the 19th Edition of Mulla’s Principles of Mahomedan Law, ‘Dhane Ali Mia v. Sobhan Ali & Ors.[10], Anarali Tarafdar v. Omar Ali & Ors.[11], Mirza Kurratulain Bahadur & Ors. v. Nawab Nuzhat-Ed-Dowla Abbas Hossein Khan[12] and, All India Reporter Calcutta 1951 page 7.’
Furthermore, it is important to note that the Hon’ble Madras High Court in the matter of A.R. Abdul Lathif v. A.R. Mohammed Iliyas[13] categorically held that as per the decision in Sharof Ali Abdul Ali Shat vs. Safiaboo and others[14], it has been held that amongst the Ismaili school of the Shia sect, a gift made during death-bed illness by a person is not valid to any extent when it is made to one or more of several heirs to the exclusion of other legal heirs. On this point, the Shia school of law lays down the same rule as that of the Hanafi law. This same be held by the Hon’ble High Court of Calcutta in then the matter of Fatima Bibee v. Ahmad Baksh.[15]
Conclusion
A will is a document that gives a legatee the free-of-charge right to property, deferred until the legator’s passing. It allows a legator some power to modify the law of inheritance. This is because it permits some relatives who are legally prohibited from inheriting as per Islamic law to acquire a portion of the land. A person is free to leave their belongings to whomever they choose, according to the Islamic rule of will. It also achieves a reasonable balance between how property is distributed under such a Will and the law of succession.
Author(s) Name: Md. Tauseef Alam (Lloyd School of Law)
References:
[1] Special Marriage Act, 1954
[2] Indian Succession Act, 1925
[3] Indian Majority Act, 1875
[4] Anarali Tarafdar v. Omar Ali & Ors. AIR 1951 Cal 7,55. see also, Kurrutulian Bahadur v. Nuzbat-ud-Dowla Abbas Hussein (1906) ILR 33Cal11
[5] Ghulam Mohammed v. Ghulam Hussain 1932 P.C. 81
[6] Yasin Imambhai Shaikh (Deceased) vs Hajarabi And Ors AIR 1986 Bom 357.
[7] (1927) 49 ALL 547
[8] supra
[9] Muhammad Junaid v. Aulia Bibi And Ors (1920) ILR 42 All 497.
[10] AIR 1978 Cal 399
[11] AIR 1951 Cal 7
[12] T.S. No. 46 of 2016
[13] A.S.No.618 of 1996
[14] Sharof Ali Abdul Ali Shat v. Safiaboo and others, AIR 1936 Mds. 432.
[15] Fatima Bibee Vs. Ahmad Baksh (1904) ILR 31 Cal 319.
