INTRODUCTION
Will is a conferment of rights which is to effect after the death of the testator. A Muslim may make his will either orally or in writing and no formalities are required. A Muslim cannot, by will dispose of more than one-third of the surplus of his estate after payment of his funeral expenses and debts. A bequest in future as well as a contingent bequest is void under Islamic Law.
LITERAL MEANING
The term will is from the Arabic word Wasiyyat which means endowment with the property of anything after death.
DEFINITION OF WILL
According to Section 2(h) of Succession Act, 1925
Will means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
REFERENCE
The Holy Quran says;
“When you found death near to you, make a will according to law.”
The Holy Prophet (PBUH) said;
“Muslim who possesses property should not sleep even for two nights unless he has made a written will”
“Allah has conferred blessing on you to do a good turn at the time of your death by means of a third of your property.”
OBJECT OF WILL
A will may be made for any purpose provided that it is lawful in Islam. “A will from Mussulman’s point of view is a divine institution since its exercise is regulated by the Quran. It offers to the testator the means of correcting to a certain extent the law of succession, and of enabling some of those relatives who are excluded from inheritance to obtain a share in his goods, and or recognise the services rendered to him by a stranger or the devotion to him hi his last moments. At the same time, the prophet has declared that the power should not be exercised to the injury of the lawful heirs.”
WHETHER IT IS OBLIGATORY OR NOT
According to all schools of thought, a will is optional.
WHO CAN MAKE THE WILL?
Every Muslim of sound mind may dispose of property by will.
PERSONS WHO CAN MAKE WILL
The testator must be
- A Major
- Of Sound mind
- Possessed with the ownership of property
PERSONS WHO CANNOT MAKE WILL
Following persons cannot make the will.
- Minor
- Lunatic
- Person of Unsound mind
IN WHOSE FAVOUR WILL BE MADE
A will can be lawfully made in favour of the following
- An individual
- An institution
- A non-Muslim
- A minor
- An insane
- Charity
CONDITIONS OF A VALID WILL
Following are the conditions of a valid will.
- Intention to give
- Disposition to take effect after the death of the testator,
- Should not affect the legal shares of heirs.
- Should not be more than 1/3 of the property.
- Stranger
FORM OF WILL
A will may be in express words or shown by the conduct of the co-heirs. So it may be
- Written
- Oral/verbal
ATTESTATION
Will should be attested by two or more witnesses
CASES WHERE WILL IS NOT VALID
In the following cases will is not valid
- A will in favour of the legal heir
- Contingent will
- Will to an unborn person
- A will in future
- A will to a person who causes the death of a testator
EXCEPTION
A will may be made to a child in the womb, provided it is born within six months from the date of the will
ESSENTIAL CONDITIONS FOR EXECUTION OF WILL
For the execution of a valid will following are two conditions
- Payment of the funeral expenses out of the property of the deceased.
- Payment of any debt out of the property of deceased
PURPOSE OF APPOINTMENT OF TESTATOR
The appointment of a testator may be for
- General purpose
- Special purpose
PARTIES TO A WILL
Following are parties to a will
- Legacy: The property bequested
- Testator: The person who makes the will
- Legatee: In whose favour the will is made
ESSENTIALS TO A VALID WILL
Following are the essentials to a valid will under Islamic Law
- Declaration by the testator1. Use simpler language: The text contains legal and technical terms that may be difficult for some readers to understand. To improve the effectiveness of the writing, the language used should be simpler and easier to comprehend.
2. Provide more examples: The text contains a lot of information, but it lacks examples to illustrate the concepts being discussed. Including more examples would make it easier for readers to understand and apply the information to real-life situations.
3. Add headings and subheadings: The text is quite long and may be overwhelming to some readers. Adding headings and subheadings would make it easier for readers to navigate the text and find the information they are looking for.
- The testator must be competent to declare
- The subject of the will must be valid
- It must be within the limit imposed on the testator.
- The legatee must be competent to take the property
- Offer by testator
- Acceptance by legatee
SUBJECT OF WILL
The subjects of a will are as under;
- Property being transferred
- Property must be in existence
LIMITATIONS ON TESTAMENTARY POWER
There are two limitations on the testamentary power of the testator, which are as follows;
AS TO PERSONS
A bequest to an heir is not valid unless the other heirs consent to the bequest death of the testator
AS TO PROPERTY
A Muslim can not be will dispose of more than one-third of his estate which is left.
REVOCATION OF WILL
A will is revocable. It can be revoked by the testator at any time before his death.
Mode of Revocation
Following are the modes of revocation of a will
Express: Testator may revoke the will in express terms either orally or in writing.
Implied: Implied revocation is that revocation where the testator does an act from which revocation may be inferred.
CONCLUSION
It is concluded that a will is the disposition of property which is to take effect at the time of the person making it It operates from the time before his death. The subject of will may be any property capable of being transferred. A will is revocable in its nature.
FAQs
Kindly define and explain the Will and explain its kinds and essentials.
(2019-A)
Define and discuss will, its ingredients and essentials. Please explain whether a will made beyond 1/3 of the estate is enforceable.
(2018-S)
Define will and its kinds and essentials.
(2017-A)
Define will and discuss its ingredients in detail.
(2016-A)
Define Will and discuss the limitation placed upon a will by Islamic law.
(2013-A)
Define and discuss the concept of Will under the provisions of Islamic Personal Law.
(2012-A)
Write a note on Will.
(2019-S, 2018-A, 2015-A, 2014-S)
