Law of Wills in Muslim Law Muslim Testamentary Succession – By Kamaluddin Khan

    By Kamaluddin Khan,

    Introduction: – When a person dies his/her property devolves upon his/her heirs. A person may die with or without a will (Testament). If a person dies leaving a will i.e. dies intestate, the property is distributed among his/her heirs according to the rules of Testamentary Succession. In other words, the property is distributed as per the contents of the testament or will. On -the other hand. if a person (lies leaving no testament (will) i.e. dies intestate, the rules of intestate Succession are applied for distribution of the property among heirs.


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    Will – Meaning:- A ‘Will or Testament’ is a document or an instrument. which declares or contains the intention of the owner of the property as to how his property is to be disposed of (distributed) after his/her death. The will takes effect on the death of the person making it. It can be revoked by the maker, before his death.

    Testator:– The person, who makes/creates a will is called ‘Testator’.

    Legate:– The person/persons, in whose favour, the will is created is called ‘Legatee’,

    Legacy:– The subject matter of the will is called ‘Legacy’. It is the property to be distributed among the heirs.

    Executor:- The testator, while executing the will, may appoint a person to execute the will in accordance with its contents (after his death). He is called ‘Executor’.

    In the absence of the appointment of Executor by the testator, the Court may appoint a person called ‘Administrator’ to execute thee will.

    Codicil:- Codicil is an instrument math in relation to will. It is a part of the will.

    Abatement of Legacies:- When a testator bequeaths more than one third of the property, and the heirs refuse to give consent, it is to be adjusted accordingly.

    Lapse of Legacy:- If the Legatee does not survive, the bequest (Property under will) is distributed as if there is no will.

    Definition:- “A will or Wasiyat” is defined as ‘an instrument by which a person makes a disposition of his property to take effect after the death and which is in its own nature ambulatory and revocable during his life’.

    Essentials/Requisites of will: – A will to be valid, the following conditions are to be satisfied.

    1. Capacity./Competence of Testator;

    2. Competence of Legatee;

    3. Subject Matter:

    4. Testamentary Capacity.

    1. Capacity of Testator:– According to Muslim Law, any person, who is a major and is of sound mind can make a will. However, a minor can make a will subject to ratification on attaining majority. According to Muslim Law, the age of Majority is 15 years, but it is not applicable to the wills in India.

    2. Competence of Legatee:– Any person having capacity to hold the property can be a legatee. The Legatee may be a Muslim or a Non-Muslim. man or woman a major or a minor or even a child in the womb provided the child is born within 6 months of the death of the testator.

    3. Subject flatter:- A Muslim can bequeath any property movable or immovable, corporeal or incorporeal, which must be in existence and transferable at the time of testator’s death.

    4. Testamentary Capacity:- A Muslim cannot dispose of by will more than 1%3 of the net assets after allowing (meeting) for the debts and funeral expenses of the testator (under both Hanafi Law and Shia Law). The remaining 2/3 share should be made available for distribution amongst the heirs. Even for bequeathing the 1/3rd share, the Muslim has to obtain the consent of the other heirs. Relevant Case on this point is: GULAM MD.vs. GULAM IIUSSAIN, AIR 1932 PC 81 … Held in this case that, bequest in favour of heirs without the consent of other heirs is invalid.

    An heirless Muslim can bequeath his entire property. In case, his wife, is the only heir, he can bequeath all his properties minus the share of his wife (as per Koranic table).

    Bequeathable One-third:– It means a third of the estate of the testator as is left after the payment of the funeral expenses, other charges and debts of the deceased (testator). All schools of Muslim Law except the Ithana Ashari School lay down that bequest of more than one third unless consented to by the heirs is invalid or a custom or usage so permits.

    Formalities of Wills:– Muslim law requires no specific formalities for creation of a will. It may be made in writing or oral or even by gestures. Though it is in writing, it need not be signed by the testator and attested by the witnesses (Ramjilal vs. Ahmed, AIR 1952 MP 56). It is necessary that the intention of the testator should be clear and unequivocal.

    Construction of Will:- A Muslim will is to be construed in accordance with the rules of construction of the will as laid down in Muslim Law. Will is a document created by any person during his life time, which operates after his death. The contents of the will arc to be implemented to fulfil the intention or desire of the testator after his death. Sometimes, the contents may not be clear. In such a case, it may be interpreted as per the option of the heirs.

    For instance, if the testator, to his will, bequeaths one house to heir A and the other for heir B without any specification. Then, the heirs have to make necessary arrangement.

    Revocation of Will:- A Muslim will or any part thereof may he revoked by the testator at any time before his death. The revocation may be express (oral or in writing) or implied. A will may be expressly revoked by tearing it off or by burning it. Any act, which results in the extinction of the subject matter or proprietary rights of the testator will impliedly revoke the will. For instance, if the testator transfers the same property by sale or gift subsequently to another. it amounts to implied revocation.


    DEATH – BED – GIFT : (MARZ-UL-MIAUT)
    (Short Notes)

    When a person creates/makes a gift out of an apprehension (fear) of imminent death and dies later, it is called “Death-Bed-Gift”. In other words, if a person makes a gift during illness and dies later, it is called Death-Bed-Gift or Matz-UI-Maut. It is subject to two restrictions: (i) disqualification of heir; and (ii) property disposed of should not exceed 1 /3 of the net assets. These restrictions may he relaxed with the consent of the heirs.

    The Death-Bed-Gift is valid only when the donor dies of illness during which the gill was made.

    Essentials of Death-Bed-Gift (Marz-U1-Maut):

    I . There must he an apprehension as to immediate death.

    2. To effect the transfer of property, by way of gift in anticipation of death.

    3. Mere apprehension of death as to old age is not sufficient.

    Section 129 of T.P. Act deals with Death-Bed-Gift or Donatio Mortis Causa. Similarly, Section 191 of the Indian Succession Act. 1925 deals with Death-Bed-Gift with regard to movable property.

    With regard to the restrictions of making a death-bed-gift by a Muslim, the rules with regard to disposition to the extent of 1/3 td’ net assets (after meeting debts and funeral expenses of testator) and also to obtain the consent of other heirs, are applicable in the Case of Mart-1JI-Maui also.

    Kamaluddin Khan

    Leccturer,

    Patna Law College,

    Patna University Patna

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