As a general rule, a Will is known as a testament and is an instrument that allows a person to dispose of his property to someone he would like to receive after he dies. The effects of a Will generally begin after the death of the person who executed it. A Will can be defined as a legal declaration that transfers property from a deceased person to another after death.
In Anglo-Mohammedan terms, Will is 'Wasiyat' in Arabic. A moral exhortation, a specific legacy, or the capacity of the executor, executorship, may be indicated by this document. According to law, a will is an instrument by which a person disposes of his property after his death and is, by its nature, ambulatory and revocable. An executor of a Will is known as a legator or testator, and a beneficiary is known as a legatee or testatrix. According to the famous Muslim jurist Ameer Ali, Will is a divine institution because the Holy Quran regulates its exercise.
In Muslim law, a Will must adhere to a strict set of rules to be valid. Accordingly, it states that a Muslim can make a Will in favour of anyone, but only to the extent of one-third of the entire estate, and if more is given, the legal heirs must consent.
Types of Will
Muslim law does not expressly provide any specific formalities for the execution of the Will. However, below is the list of types of Will under Muslim Laws:
An oral declaration is also considered a Will. Creating a Will does not require any particular process or formality. A mere oral declaration is enough. However, corroboration of such a Will is very difficult. An oral Will must be proved with extreme fidelity and precision in date, time, and place.
The law describes no specific form in the formation of a Will. Even if the Legator does not sign or the witnesses do not attest to the Will, it is still valid. No matter the document's name, as long as it meets the essential criteria, it will be considered valid.
Will made by Gestures
Gestures may be used to make a Will under Islamic law. For example, if a sick person makes an endowment when he is unable to speak because of weakness, he gives a comprehensive nod. If it is understood what he is trying to convey, he dies without being able to speak again. His legacy is valid and legal.
Parties involved in the will
In India, just like in many other countries, Muslims have the option to create a legally binding document called a "Will" to outline how their assets and properties should be distributed after their demise. A Muslim Will is guided by Islamic principles and laws, which are derived from Quranic teachings and the Hadiths (sayings and actions of Prophet Muhammad). In a Muslim Will, there are several parties involved, each with specific roles and responsibilities. Here's a detailed explanation:
- Testator (Wasiyat Karne Wala): The testator is the person who creates the Will, outlining their wishes regarding the distribution of their assets and properties upon their death. The testator must be of sound mind, mature age, and should not be under any undue influence or pressure while creating the Will.
- Beneficiaries (Waris): Beneficiaries are the individuals or entities who will inherit or receive a share of the assets as specified in the Will. These beneficiaries could be family members, relatives, friends, or charitable organizations. Islamic inheritance laws prioritize close family members such as spouses, children, parents, and siblings.
- Executor (Wakeel or Executor): The executor is responsible for carrying out the instructions laid out in the Will after the testator's demise. This individual is appointed by the testator and should be someone trustworthy and capable of handling the distribution of assets according to Islamic principles. The executor's role includes managing the assets, paying off debts, and ensuring that the distribution is carried out as per the Will's instructions.
- Witnesses (Gawahi): A Muslim Will typically requires two male adult witnesses to validate its authenticity. These witnesses should not be beneficiaries or heirs mentioned in the Will. Their role is to confirm that the testator created the Will willingly and while in a sound state of mind. Their signatures on the Will serve as evidence of its legitimacy.
- Legal Heirs (Waris-e-Mirath): Legal heirs are individuals who are entitled to a share of the deceased's assets according to Islamic inheritance laws. In a Muslim Will, the testator has the freedom to allocate up to one-third of their assets for charitable purposes, individuals outside the legal heirs, or to settle any debts. However, for the remaining two-thirds of the assets, the distribution must adhere to Islamic inheritance rules.
While Muslims are encouraged to create Wills to ensure the proper distribution of their assets, the distribution of assets after death is ultimately guided by Islamic inheritance laws, regardless of the contents of the Will. In cases where a Muslim dies without leaving a Will, Islamic inheritance rules will automatically come into play to determine how the assets will be divided among the legal heirs. Since laws and regulations can vary over time, it's recommended to consult with legal and religious experts familiar with current Indian laws and Islamic jurisprudence to ensure that the Muslim Will is in compliance with both legal and religious requirements.
Essential Condition to Make a Valid Will
Here are some of the essential conditions to make a valid will:
- Soundness of Mind: One of the most important conditions for a valid Will is that the person making the Will (known as the "testator") must be of sound mind when creating the document. This means they should fully understand the nature of their assets, the people they're leaving them to, and the implications of their decisions. A person with a clear and rational mind is better equipped to make informed choices about how their property will be distributed after they pass away.
- Voluntariness: The decision to make a Will should be made voluntarily, without any undue influence or pressure from others. The testator should not be coerced, manipulated, or forced into making decisions that they don't genuinely want. This ensures that the Will accurately reflects the testator's true wishes, and prevents any attempts to take advantage of them during a vulnerable time.
- Legal Age: The testator must be of legal age, which varies depending on the jurisdiction but is typically 18 years or older. Being of legal age signifies that the person has reached a level of maturity and responsibility that allows them to make important decisions regarding their assets and property.
- Proper Formalities: To make the Will legally valid, it must follow certain formalities. These include the document being in writing, signed by the testator, and witnessed by at least two independent individuals who are not beneficiaries mentioned in the Will. The witnesses' role is to confirm that the testator signed the Will of their own accord and that they were of sound mind at the time.
- Clear Intention: The Will should clearly express the testator's intentions regarding the distribution of their property after their death. It should specify who will inherit what assets and in what proportions. Ambiguities or vague terms can lead to disputes among beneficiaries and make it difficult to carry out the testator's wishes accurately.
- Revocability: A Will should also be revocable, which means the testator has the right to change or revoke the Will at any time during their lifetime, as long as they are mentally competent. This ensures that the testator can adapt their plans according to changing circumstances or relationships.
- Compliance with Legal and Religious Requirements: If the testator wishes to create a Will that deviates from standard legal inheritance rules, it's important to consult legal and religious experts to ensure that the proposed distribution aligns with both civil laws and Islamic principles, if applicable.
Revocation of a Will
According to Muslim law, a legator has an emancipated right to revoke his Will at any time. Below are the two ways of revoking a Will:
Revocation can be expressed either verbally or in writing. If a legator leaves some of his property to a person and then makes a subsequent Will transferring the same property to another person, then the first Will is automatically revoked.
Furthermore, if the legator burns or tears off a Will he has executed, the Will is also deemed expressly revoked. Note that simply denying a Will does not constitute a revoked Will. There must be an action taken by the Legator which indicates his clear intention for the revocation of the Will.
By acting contrary to the endowment, the Legator will revoke the Will. As a result, annihilating a bequest's subject matter implies the Will's revocation. An implied revocation of a Will occurs, for example, when the Legator executes a Will giving land to someone, builds a house on that land, or sells or gifts that land to someone else.
The purpose of a will is to endow the legatee with property rights in a gratuitous manner, postponed until the creator's death. A legator is allowed to correct the law of succession to some extent. As a result, some relatives can obtain a share in the property who are otherwise excluded from inheritance under Islamic law. To ensure that your will aligns with both legal requirements and your intentions, it's advisable to consult with a will lawyer. In Islamic law, a person can devolve his property to a person of his choice.
If you have specific concerns related to Islamic legal principles, it's recommended to consult with lawyers who specialize in Muslim law. Despite this, Islamic law also maintains a rational balance between the law of inheritance and the devolution of property under a will.
Can Muslims make a will?
Yes, under Muslim law, also known as Islamic law, Muslims are permitted to make a will to distribute their property and assets after their death.
What are the essential requirements for a valid will under Muslim law?
- The Legator must be competent.
- The Legator must give free consent
- The testator must be a competent person. i.e. sound mind must be a Muslim and above 18 years of age.
- The subject matter of the Will must be valid.
Who can make a Wasiyat?
A Muslim who has attained the age of majority. i.e. 18 years of age. If Wasiyat is taken care of by a guardian, then the person must be 21 to make a will.
Is the verbal Will valid?
There is no particular way to make a will valid. A valid can be either verbal or written. However, verbal will be valid if the testator's intention is sufficiently ascertained.