Introduction

• A will, also known as a testament/Wasiyat, is a legal document in which a person, known as the testator, states their desires for how their property should be dispersed after they die and names one or more people, known as the executors, to administer the estate until its final distribution.
• The purpose of this is to show respect for the prophet’s word in order to ensure the legal heirs’ shares.

Essential of Valid Will

• The person by whom the will is made, also known as the testator, must be competent to make it.
• The legatee, or person in whose favour the will is made, must be competent to accept the bequest.
• The bequest subject must be lawful.
• The bequest cannot exceed the testator’s powers, which is one-third of their estate.

1.Testator and his competence: - The testator must be 18 or 21 years, as the case may he, at the time of execution of the will. At the time of execution of a will (i.e. when it is being made), the testator must be of sound mind.

2.Legatee and his competence: - Any person capable of holding property may be the legatee under a will. The title to the subject of bequest can only be completed with the express or implied assent of the legatee after the death of the testator.

• Bequest to an institution: - A bequest may be validly made for the benefit of an institution.
• Bequest to a non-Muslim: - A bequest in favour of a non-Muslim is valid provided the non-Muslim is not hostile towards Islam.
• Bequest to testator’s murderer: - According to Sunni law, a bequest to a person who caused the death of the testator whether intentionally or unintentionally is invalid.
• Bequest to an unborn person: - A child who is born within 6 months of the date of making the will is treated as a legatee in existence and hence competent to take the bequest. In Shia law, it is valid if child is born in the longest period of gestation i.e., ten lunar months.
• Bequest for a charitable object: - A bequest for the benefit of a religious or charitable object is valid. Under Muslim Law certain restrictions have been imposed on the right of the legators to make a will depriving the right of the heirs.

3.Subject of will and its validity:

• The property must be capable of being transferred
• The property must be in existence at the time of testator’s death not necessary at the time of making of the will.
• The testator must be the owner of the property to be disposed by will.
  • Bequest in future: - A bequest cannot be made of anything to be performed as produced in future.
  • Alternative bequest: - An alternative bequest of property i.e. to one or falling him to the other person is valid.
  • Contingent bequest: - It is void.
  • Conditional bequest: - A bequest with a condition which derogates from its completeness will take effect as if no condition was attached to it.
  • Bequest of life-estate: - Sunni Law treats a bequest to life-estate as bequest with a condition attached to it and as such the rule of a conditional gift applies, the bequest takes effect while the condition becomes void but under shia law conditional ‘will’ take full effect.

4.Testamentary power and its limits: - The Testamentary capacity of a Muslim is limited. There are two-fold restrictions on the power of a Muslim to dispose of his property by will and these are in respect of the person in whose favour the bequest is made and as to the extent to which he can dispose of his property.

Limitation

• As regard the person: - The general rule, in this regard has been very clearly laid down in Ghulam Mohammed v. Ghulam Hussain (1931) Bombay High Court held in this case that a bequest in favour of an heir is not valid unless other heirs consent to the bequest after the death of the testator.
• As regard the property: - The general rule with regards to the extent of property that may be disposed of by will is that no Muslim can make a bequest of more than one-third of his net assets after payment of funeral charges and debt.

How can ‘will’ be revoked?

A will can also be revoked any time before the death of the testator. It can be done either expressly or impliedly.

(a) Express revocation – Express revocation means revocation of will either orally or by writing.

(b) Implied revocation – Implied revocation means revocation by any act of the testator i.e., when the testator does any act which shows his intention to cancel the bequest. His intention may be implied when he disposes property before his death to any other person or when he destroys the property.