Will Definition and Parties in Will:
There are many modes of transferring property from one person to another. These are non-testamentary like gift and sale and testamentary like will in which a person declares his wishes to transfer his property to certain persons or in a certain way, as per his wishes, to take effect after his death. Islamic law restricts the testamentary powers of a Muslim in certain respects which we will discuss later.
Will means “wasiyat” in Arabic.
Will is defined as,
“Conferment of the right of property in a specific thing or in a profit or advantage or in a gratuity to take effect on the death of testator”.
Hence, it is a legal declaration of the intention of the testator with respect to his property, which he desires to take effect after his death.
Requisites of Valid Will:
There are following prerequisites of a valid will under Islamic Law: –
i). Testator to be a competent person
ii). Legatee to be capable of taking the legacy
iii). Objects must be permitted under Sharia
iv). Subject matter must not be illegal
v). Bequest must be within extent and limits prescribed by Islamic law.
Parties to Will:
There are two parties in a will i.e. testator and legatee.
a). Testator and his Competency:
In order to make a valid will, the testator must be an adult and sane person. He cannot be minor or lunatic. He must be the owner of the subject matter of will.
The age of majority may have two angles
– with respect to Islamic law and
– as per State law.
According to Islamic law:
A person’s minority is up to fifteen years.
According to State law:
As per Majority Act, 1875 age of majority is eighteen years.
Will of Minor:
It is treated as void ab-initio unless he ratifies it on attaining majority.
Will of a Person Who is Unsound Mind:
It is invalid, even if later on he becomes a person of sound mind unless he ratifies it after becoming of sound mind.
Will of Married Woman:
It is always valid provided all other requisites are fulfilled.
b). Legatee and his Competency:
Any person who is capable of holding property may be a legatee. So, age, sex and religion are no bars to taking the bequest. However, under Sunni law he must be in existence at the time of making the will, while under Shia law he must be in existence at the time of the death of testator. Some particular instances are as under: –
Bequest to a Non-Muslim:
It is valid.
Bequest to a Dead Person:
It is invalid, so where legatee dies before testator, the will shall not take effect to that extent.
Bequest in Favor of an Unborn Person:
If such person is born within six months of the date of making the will under Sunni law, it shall be valid and under Shia law within six months of the death of the testator.
Objects of Will:
A will is always valid if it is for a purpose which is lawful, charitable, religious or pious. While a will for the purposes forbidden by Sharia is treated as void: –
i). Bequest for building Church, Mandir etc.
ii). Bequest to help tyrants.
iii). Bequest to build and ornamenting testator’s grave.
iv). Bequest for any illegal purpose.
v). Bequest for translating religious books other than Quran.
Subject Matter of Will:
For a valid subject matter of will following rules are prescribed:
i). Property must be capable of transferring
ii). Property must be in existence at the time of death of testator
iii). Testator must be owner of property and it must not belong to someone else
iv). The property must be a legal one as per sharia i.e. it must comply with the definition of mal.
Formalities to make a Will:
Under pure Islamic law, formality for a will is the only thing required is the clear and unambiguous intention of the testator.
Revocation of Will:
The testator has absolute powers to revoke his will at any time during his lifetime either expressly or impliedly. Even he can revoke his former will through subsequent will regarding same subject matter or he can deny as to the validity of his will or the fact of making the will and in such a case ‘will’ shall be deemed to have no effect. Where legatee dies before the testator, the legacy lapses and forms part of testator’s heritable property.
It is concluded that Will definition is that it is the declaration of intention of a person regarding his property, which he desires to take effect after his death.