WILLS UNDER MUSLIM

LAW

MADE BY
SHIVAM MALHOTRA
B.COM LLB (HONS.)
A3221614089
4TH SEMESTER

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my

teacher as well as our Director who gave me the golden
opportunity to do this wonderful project on the topic of wills
under Muslim law, which also helped me in doing a lot of
Research and I came to know about so many new things I am
really thankful to them.
Secondly I would also like to thank my parents and friends who
helped me a lot in finalizing this project within the limited time
frame.

Index
1. Introduction
2. The importance of the Islamic will

3. The Will (Al-wasiyya)

4. The Testator (Al-musi)
5. The Legatee (Al-musa lahu)
6. Executor of the will (Al-wasi Al- mukhtar)
7. Essentials of a will
8. Exception to the general rules
9. Bibliography

Introduction
Will is the anglo-mohammedan term for its Arabic equivalent
Wasiyat.
Generally wasiyat means will but it has also other meanings.

Will means the legal declaration of the intention of a testator with

respect to his property, which he desires to take effect after his
death. It may signify a moral exhortation, specific legacy or the
capacity of the executor, executorships. The Islamic will is also
called al-wasiyya. A will is a transaction which comes into
operation after the testators death. The will is executed after
payment of funeral expenses and any outstanding debts. The one
who makes a will (wasiyya) is called a testator (al-musi). The one
on whose behalf a will is made is generally referred to as a legatee
(al-musa lahu). Technically speaking the term "testatee" is
perhaps a more accurate translation of al-musa lahu.
From this definition we get the following elements of will:
1. Will is a conferment of right to ones property on another.
2. This conferment of right is to take effect after the death of
the testator.

The importance of the

Islamic will

The importance of the Islamic will (wasiyya) is clear from the

following two hadith:
"It is the duty of a Muslim who has anything to bequest not to let
two nights pass without writing a will about it." (Sahih alBukhari)
"A man may do good deeds for seventy years but if he acts
unjustly when he leaves his last testament, the wickedness of his
deed will be sealed upon him, and he will enter the Fire. If, (on
the other hand), a man acts wickedly for seventy years but is just
in his last will and testament, the goodness of his deed will be
sealed upon him, and he will enter the Garden." (Ahmad and Ibn
Majah)
The will gives the testator an opportunity to help someone (e.g. a
relative need such as an orphaned grandchild or a Christian
widow) who is not entitled to inherit from him. The will can be
used to clarify the nature of joint accounts, those living in
commensality, appointment of guardian for ones children and so
on. In countries where the intestate succession law is different
from Islamic law it becomes absolutely necessary to write a will.

The Will (Al-wasiyya)

The Islamic will includes bequests and
admonishments, and assignments of rights.

legacies,

instructions

and

No specific wording is necessary for making a will. In Islamic law the will
(wasiyya) can be oral or written, and the intention of the testator must be clear
that thewasiyya is to be executed after his death. any expression which signifies
the intention of the testator is sufficient for the purpose of constituting a
bequest.
There should be two witnesses to the declaration of the wasiyya. A written
wasiyya where there are no witnesses to an oral declaration is valid if it written
in the known handwriting/signature of the testator according to Maliki and
Hanbali fiqh.
The wasiyya is executed after payment of debts and funeral expenses. the
majority view is that debts to Allah (SWT) such as zakh, obligatory expiation
etc. should be paid whether mentioned in the will or not. However, there is
difference of opinion on this matter amongst the Muslim jurists.

The Testator
(Al-musi)
Every adult Muslim with reasoning ability has the legal capacity
to make a will. An adult for this purpose is someone who has

reached puberty. Evidence of puberty is menstruation in girls and

night pollution (wet dreams) in boys. In the absence of evidence,
puberty is presumed at the completion of the age of fifteen years.
The Maliki and Hanbali fiqh also consider the will of a discerning
(tamyiz) child as valid.
Under English Law you must be at least 18 years of age to make a
valid will (similarly in most of the United States of America)
unless you are a military personnel in which case you may make
a valid will at the age of 17.
The testator must have the legal capacity to dispose of whatever
he bequests in his will. When making a will the testator must be
of sane mind, he must not be under any compulsion and he must
understand the nature and effect of his testamentary act. The
testator must of course own whatever he bequests.
The testator has the right to revoke his will by a subsequent will,
actually or by implication.
In traditional Sunni Islamic law the power of the testator is
limited in two ways:
Firstly, he cannot bequest more than 1/3 of his net estate
unless the other heirs consent to the bequest or there are
no legal heirs at all or the only legal heir is the spouse who
gets his/her legal share and the residue can be bequeathed.
Narrated Sad ibn Abi Waqqas (RA): "I was stricken by an
ailment that led me to the verge of death. The Prophet came
to pay me a visit. I said, "O Allah's Apostle! I have much
property and no heir except my single daughter. Shall I give
two-thirds of my property in charity?" He said, "No." I said,
"Half of it?" He said, "No." I said, "One-third of it?" He said,
"You may do so, though one-third is also too much, for it is
better for you to leave your offspring wealthy than to leave
them poor, asking others for help..." (Sahih al-Bukhari,
Sahah Muslim, Muwatta, Tirmidhi, Abu Dawud and Ibn
Majah.)

Secondly, the testator cannot make a bequest in favour of a

legal heir under traditional Sunni Muslim law. However,
some Islamic countries do allow a bequest in favour of a
legal heir providing the bequest does not exceed the
bequeathable one-third.
Legal heir in this context is one who is a legal heir at the time of
death of the testator.
Narrated Abu Hurayrah (RA): Allahs Prophet (SAWS) said, "Allah
has appointed for everyone who has a right what is due to him,
and no bequest must be made to an heir. (Abu Dawud). Similar
hadith narrated by Abu Umamah (RA) and reported by Ibn
Majah, Ahmad and others.

The Legatee
(Al-musa lahu)

Generally speaking, for a bequest to be valid, a legatee must be in

existence at the time of death of the testator except in the case of
a general and continuing legatee such as the poor, orphans etc.
The legatee must be capable of owning the bequest. any bequest
made in favour of any legal heir already entitled to a share is
invalid under traditional Sunni Muslim law unless consented to
by other legal heirs. an acknowledgement of debt in favour of a
legal heir is valid.
Acceptance or rejection of a bequest by the legatee is only
relevant after the death of the testator and not before. Generally
speaking once a legatee has accepted or rejected a bequest he
cannot change his mind subsequently.
If the legatee dies without accepting or rejecting the bequest, the
bequest becomes part of the legatees estate according to the
Hanafi fiqh because non-rejection is regarded as acceptance.
According to the other three main Sunni madhahib, the right to
accept or reject the bequest passes onto the heirs of the legatee.
There is difference of opinion as to the time at which ownership
of a bequest is transferred from the testator (or his heirs) to the
legatee. According to the Hanafi and Shafii fiqh the transfer of
ownership is at the time of death of the testator, according to the
Maliki and Hanbali fiqh the transfer of ownership is at the time of
accepting the bequest.
All the Sunni madhahib agree that if the legatee dies before the
testator, the bequest is invalid since a bequest can only be
accepted after the death of the testator.
If there is uncertainty as to whether or not the legatee survived
the testator, such as a missing legatee, the bequest is invalid
because the legatee must be alive at the time of death of the
testator for the will to be valid.
If the testator and legatee die together, such as in an air crash
and it is not certain who died first, the bequest is invalid
according to the Hanafi, Maliki and Shafiifiqh. But according to
the Hanbali fiqh, the bequest devolves upon the legatees heirs

who may accept or reject it.

Executor of the will (Al-

wasi Al-mukhtar)
The executor (al-wasi) of the will is the manager of the estate
appointed by the testator. The executor has to carry out the
wishes of the testator according to Islamic law, to watch the
interests of the children and of the estate. The authority of the
executor should be specified. Hanafi and Maliki fiqh state that
the executor should be trustworthy and truthful; the Shafii fiqh
state that the executor must be just. The Hanafi fiqh considers
the appointment of a non-Muslim executor to be valid. The
testator may appoint more than one executor, male or female. The
testator should state if each executor can act independently of
the other executor(s).
If one starts acting as an executor, one will be regarded as having
accepted the appointment, both in Islamic and in English law.

Essentials of a will
The following are the essentials of a will.
Legal declaration by the executants
The declaration by the executants of the will, must be legal viz.
should be in conformity with the provisions of the Indian
Succession Act, 1925 and must be by a person competent to
make it.
Competency of person to make the will
Every person of sound mind not being a minor can execute a will.
Persons who are deaf, dumb or blind are not incapacitated for
making a will, if they are able to know what they do by it. A
person who is ordinarily insane may make a will during an
interval in which he is of sound mind. No person can make a will,
while he is in such a state of mind, whether arising from
intoxication or from illness or from any other cause that he does
not know what he is doing. The testator should be capable of
sound and disposing mind and memory.
The declaration should be relating to the testator's property and
the testator should intend to dispose off his property after his
death. If the declaration is not to take effect or if the testator
wanted to carry out the intention made in the declaration
immediately, the instrument will not be a will, the will should be
revocable during the lifetime of the testator. If the instrument is
intended to come into effect with immediate effect and to be final
and irrevocable, it will not be a will.
Law relating to wills
The will made by any Hindu, Buddhist, Sikh or Jain is governed
by the provisions of Chapter VI of Indian Succession Act, 1925.
However, the provisions of the Indian Succession Act, 1925 are
not applicable to Mohammadans, who can dispose off the
property by a will in accordance with the Muslim Law. Under
Muslim Law, the will executed by a Mohammadan is not required
to be probated.

Execution of will
Every testator, not being a soldier employed in an expedition or
engaged in actual warfare, or an airman so employed or engaged,
or a mariner at sea, shall execute his will according to the rules.
Signature of the testator on the will
The testator shall sign or shall affix his mark to the will or it shall
be signed by some other person in his presence and by his
direction. The will should be dated.
Attestation
'The will shall be attested by two or more witnesses. The
attestation by the witnesses should be by the signatures of the
witnesses and not by their mark and the attestation should be
done after the testator has executed the will and not before. The
attesting witnesses need not know the contents of the will and
the testator need not disclose the nature or contents of the
document.
Property, which can be, disposed off by Will
Any movable or immovable property can be disposed off by a will
by its owner. Under Mitakshara Law, a Hindu coparcener could
not dispose off his undivided coparcenary property by will, even if
other coparceners consented to it. But section 30 of Hindu
Succession Act, 1956 provides that any Hindu may dispose off by
will or other testamentary disposition any property, which is
capable of being so, disposed of by him in accordance with law.
The interest of a male Hindu in a Mitakshara coparcenary
property is deemed to be property capable of being disposed off
by him.
Who can be a devisee under a will
Any person capable of holding property can be a devisee under a
will and therefore a minor, lunatic, a corporation, a Hindu deity
and other juristic person can be a devisee. Sections 112 to 117 of
Indian Succession Act, 1925 put some restrictions on the
disposition of property by will in certain cases. Dispositions of
property by will in some cases have been declared void.
Wills by Muslims

Under Muslim Law, every adult Muslim of sound mind can make
a will. A minor or a lunatic is not competent to execute a will.
Though under Muslim Law, a person gets the majority at the age
of 15 years, but in India, the case of will is governed by the
Indian Majority Act according to which the minority terminates at
the age of 18 years, but if the guardian has been appointed by
the Court for the minor, the minority will terminate at the age of
21 years. The legatee can be any person capable of holding
property and bequest can be made to non-Muslim, institution,
and charitable purposes. A bequest can be made to an unborn
person and a will in favour of a child who is born within six
months of the date of making the will can be a legatee. But
according to Shia Law, a bequest to a child in the womb is valid,
even if the child is in the longest period of gestation i.e., ten lunar
months. The property bequeathed must be capable of being
transferred and the testator should be the owner of the said
property. The property bequeathed should be in existence at the
time of death of the testator, even if it was not in existence at the
time of execution of the will. A Muslim cannot bequest his
property in favour of his own heir, unless the other heirs consent
to the bequest after the death of the testator. The person should
be legal heir at the time of the death of the testator. However,
under Shia Law, a testator
may bequest in favour of his heir so long as it does not exceed
one third of his estate and such bequest is valid even without the
consent of other heirs. The consent can be given before or after
the death of the testator. But if the entire estate is bequeathed to
one heir excluding other heirs entirely from inheritance, the
bequest will be void in its entirety. According to Sunni Law, the
consent by the heirs should be given after the death of the
testator and the consent given during the lifetime of the testator
is of no legal effect. Under Shia Law, the consent by the heirs
should be free and a consent given under undue influence fraud,
coercion or misrepresentation is no consent and the person who
has given such consent is not bound by such consent. The
consent by the heirs can be given either expressly or impliedly. If
the heirs attest the will and acquiesce in the legatee taking

possession of the property bequeathed, this is considered as

sufficient consent. If the heirs do not question the will for a very
long time and the legatees take and enjoy the property, the
conduct of heirs will amount to consent. If some heirs give their
consent, the shares of the consenting heirs will be bound and the
legacy in excess is payable out of the shares of the consenting
heirs. When the heir gives his consent to the bequest, he cannot
rescind it later on.

Principle of rate able abatement in case heirs does not give

consent.
Under Hanafi Law, if a Mohammedan bequest of more than one?
third of the property and the heirs does not consent to the same,
the shares are reduced proportionately to bring it down to one?
third. Bequests for pious purposes have no precedence over
secular purposes, and are decreased proportionately. Bequests
for pious purposes are classified into three categories:
1) Bequest for faraiz i.e. purposes expressly ordained in the
Koran viz. hajj, zakat and expiation for prayers missed by a
Muslim.
2) Bequest for waji-bait i.e. purposes not expressly ordained in
the Koran, but which are proper viz. charity given for
breaking rozas.
3) Bequest for nawafali i.e. purposes-deemed pious by the
testator, viz. bequest for constructing a mosque, inn for
travellers or bequest to poor. The bequests of the first
category take precedence over bequests of the second and
the third category and bequests of the second category take
precedence over those of the third.
Under Shia Law, the principle of rate able abatement is not
applicable and the bequests made prior in date take priority over
those later in date. But if the bequest is made by the same will,
the latter bequest would be a revocation of an earlier bequest.

No writing necessary
Under Muslim law, a will may be made either orally or in writing
and though in writing, it does not require to be signed or
attested. No particular form is necessary for making a will, if the
intention of the testator is sufficiently ascertained. Though oral
will is possible, the burden to establish an oral will is very heavy
and the will should be proved by the person who asserts it with
utmost precision and with every circumstance considering time
and place.
But if the marriage of a Muslim has been held under Special
Marriage Act, 1954, the provisions of Indian Succession Act,
1925 shall be applicable and he cannot execute a will under
Muslim law.
Revocation of will by a Muslim
The testator may revoke his will at any time either expressly or
impliedly. The express revocation may be either oral or in writing.
The will can be revoked impliedly by testator transferring or
destroying completely altering the subject matter of the will or by
giving the same property to someone else by another will.
Registration of wills
Though it is not necessary to register a will, but the Law
recognizes a Registered will when the execution of a will is
disputed and when there is an unregistered will. The provisions
relating to registration of the will have been given in sections 40
and 41 of the Indian Registration Act. The testator, after his
death, or any person claiming as executor or otherwise under a
will, may present it to any Registrar or Sub Registrar for
registration. No time limit has been prescribed for registering the
will and a will may be presented for registration at any time.' A
will presented for registration by the testator may be registered in
the same manner as any other document. A will presented for
registration by any other person entitled to present it shall be
registered, if the registering officer is satisfied
a) that the will or authority was executed by the testator;

b) that the testator is dead; and

c) that the person presenting the will is entitled to
present the same.
The registration of will is not the proof of the testamentary
capacity of the testator, as the Registrar is not required to make
an enquiry about the capacity of the testator except in case the
testator appears to him to be a minor or an idiot or lunatic.
Codicil
Codicil means an instrument made in relation to a will and
explaining, altering or adding to its dispositions and shall be
deemed to form part of the will. The codicil is generally made to
make slight changes in the will, which has already been executed.
A codicil cannot alter a will more than what is necessary to carry
out the testator's intention as evidenced by the will and the
codicil.
Codicil means an instrument made in relation to a will and
explaining, altering or adding to its dispositions and shall be
deemed to form part of the will. The codicil is generally made to
make slight changes in the will, which has already been executed.
A codicil cannot alter a will more than what is necessary to carry
out the testator's intention as evidenced by the will and the
codicil.

Exception to the general

rules.
The following are two exceptions to the above mentioned generals
rules:
a) Under Hanafi law, a bequest or more than one-third of the
net assets may be valid, if the heirs, whose rights infringed

thereby, give their consent to the bequest after the death of

the testator. In shia law such consent validates the will
whether given before or after the testators death
b) The above rule of bequeathable one-third will not apply to a
case where the testator has no heir. The right of government
to take the estate of an heirless person will not, in any way,
restrict the right of a person to make a disposition of his
property, as he likes. In other words, Government is no heir
to an heirless person.

Bibliography
Books referred:
Mohammeden Law, Aqil Ahmad

Muslim Law, Paras Diwan

Websites referred:
www.islam101.com
www.legallight.in
www.lawyersclubindia.com