Willl/ 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/ beneficiary 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 general a person needs to be above 18 for the purpose 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 Kanpur. 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 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-valid
Shia law- if he survives then the will becomes invalid –
dies the will is valid.
Lapses
Under sunni law
Death of the legatee in the lifetime of testator
Will automatically lapse.
Under Shia law
Only if the testator 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 rateably reduced or abated.
 For example A a sunni 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)
 A Sunni male died leaving behind an asset
worth of 1,50,000. He bequeathed 50,000 to
his wife and 50,000 to a friend D.
 Total Asset= 1, 50,000

Bequeathable 1/3 = 50,000

wife= Nothing as under Sunni law a heir
cannot be legatee
D= 50,0000. no ratable reduction required.
 Under Shia law- if bequeath exceeds 1/3 and is for two or more than two legatee
- heirs 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 till the 1/3 limit is 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 C.
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 exhausted.

Exception to this Rule

If two person are given 1/3 each then the later Bequest shall Prevails. For Example
A in his will gave both A and B 60,000. the bequeathable property is 60,000 here
as the bequest to B is later he will the entire amount and A will get nothing.
Difference Between Sunni and shia law
Sunni Law
No bequeath to heirs Allowed, not
even 1/3
Consent of heirs after the death of
testator
Child in the womb- will valid if
born within 6 months
Legatee causing death cannot take
property
Shia law
Bequeath to heirs to limit 1/3
allowed.
Consent can be given before or
after.
Born till 10 months from the date
of testator death
Only when intentional death then
cannot take property.
Thank You