Will under Muslim Law

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WASIYAT

INTRODUCTION

1) Wasiyat means ‘will’ or testament.

2) A will or wasiyat or testament is a document or instrument which defines the intention of owner of property that how his/ her property distributed or disposed off after his/her death.

3) In simple words a will or testament is a testamentary or legal document which clarifies the intention of testator regarding his property that who will be future owner of his property after his/her death.

4) Making of will is necessary in current time situation because there is dispute between the heirs that who will be owner of property after the death of owner of property. So it is better to decide that who have right on property and in which proportion.

5) Will or wasiyat is defined in Section 2(h) of Indian Succession Act 1925.

Who is Testator?

1) A person who makes or creates the will is called Testator.

2) In simple words It is a person who prepared testamentary documents of his property.

3) Testator is also known as Ligator.

4) In Muslim Law it is also known as Mufi.

Who is Legatee?

1) A person in whose regard the will is made is called Legatee.

2) In simple words a Legatee is a person in whose favour the will or testamentary documents is made and who enjoy all the benefits and all the legal rights and liability after the death of testator.

What is Legacy?

1) The subject matter of will is called Legacy.

2) In simple words Legacy is the property which is distributed among the heirs.

Who is Executor?

1) The testator while making his will appoint a person who will execute that will after his death is known as executor.

2) Executor has no benifit in property but it manages all the executive departments of testator will or testamentary documents.

What is essentials of Will?

1) Capacity
2) Competence of Legatee
3) Subject matter

1) Capacity – According to Muslim Law, any person who is of sound mind and major can make the will. In case of minor the age of majority is 15 years.

2) Competence of Legatee – According to Muslim Law any person can become Legatee who is capable of holding the property and capable of enjoying the legal rights and bear liability on that property. A legatee may be either Muslim, Non-Muslim, Minor or even a kid in mother womb conceived at least 6 months.

3) Subject matter – A Muslim can transfer any property which is in presence and can be transferable easily.

Important Points to be remembered –

1) In case of sale and gift deed the ownership of property is immediately transferred to the legatee but in case of will the ownership of property is in hand of testator till his death.

2) Another important point to be remembered is that in case of gift and sale deed the possession of property transfer to legatee at time of entering into contract but in case of will the possession remains with testator even the will can be made by the owner of property.

Declaration of Will?

Declaration of will means the time at which the testator declare that particular person can hold the property after his death and make a legal declaration and testamentary documents in this regard.

Execution of Will?

Execution of will means the time at which the executive executes the will of testator on respect of legatee after death of testator.

Difference between Declaration and Execution of Will?

In case of will, declaration of will does not mean that the ownership of property also transfer to the legatee. But it means the ownership and possession of the property will transfer to legatee after his death of testator until he/she alive it is impossible.

Will procured by undue influence –
A will that is procured by undue influence, coercion or fraud is not valid and the will must be executed by legator with his free consent.
If the will has executed by Muslim who cease to be Muslim at time of death then the will is valid under Muslim Law.

Concept of Joint Legatees

1) A bequest may be made of two or more legatees jointly and when no specific share of any them has been mentioned then the property is divided equally among all the legatees.

2) But where the legator himself has specified the respective shares of legatee then the legatee would get the share allot to him.

3) Any kind of property whether movable or immovable, corporal or incorporeal may be subject matter of will.

Case Law-
Husaini Begum vs Mohd. Mehdi

In this case it was held that the bequest of entire property to one heir to exclusion of other heir is void.

Revocation of Will

Under Muslim Law testator or legator or Mufi has the right to revoke the will. A Muslim testator revoke during his life time any will made by him whether expressed or implied.

Conclusion

As we all know that in mordern times the most common dispute between the family whether joint or nuclear is distribution of property. In such case to stop the dispute it is better than prevention is better than cure so it proves effective to make will during his life period and stop the future dispute between the family member or heirs of family.
A will is legal document or a testamentary document which helps the testator to make will of his property and helpa in decision making of future owner of that property who enjoys the property benefits and legal rights and also bear legal liability. While making the will the ownership of property is not immediately transferred instead it transferred after the death of testator. And also there is benifit to testator that he/she can withdraw his will at any time untill he/she alives by cancelling them. Also the will which is obtained by using force undue influence is void and illegal because the will made can be free of consent of testator who makes the will.

Author: Mohak Jain,
Ideal Institute of Management and Technology Karkardooma