There are enormous ways to make disposition of property in Hindu law as well as in Islamic Law. Under Islamic law, a Muslim can dispose of his property by gift, by creating a wakf or by accessing his testamentary powers i.e. by making a Will.
The concept of a Will under Islamic law is a sort of bargain between two different propensities. One, the view of the prophet is clear that after the death of a person, his property has to be distributed to his heirs and this rule is considered as divine law and any interference to it is unacceptable. On the other hand, it is a moral duty of every Muslim to make appropriate arrangements for his property after his death.
Meaning and nature of Will
Conventionally, a Will, also called ‘testament’ is an implement which enables a person to dispose of his own property to someone whom he wants to give after his death. A Will comes into effect only after the death of the person who created the Will. A Will is a legal declaration of transfer of property by a person after his death.
In Islamic law, a Will executed by a Muslim is known as ‘Wasiyat’. The person who executes the Will is called ‘legator’ or ‘testator’ and the person in whose favour the Will is made is known as ‘legatee’ or ‘testatrix’. A very famous Muslim scholar ‘Ameer Ali’ defined a Will from the point of view of Mussalman as a divine institution because its exercise is regulated by the Holy Quran. At the same time, Prophet had proclaimed that such testamentary powers must not exert any damage to the lawful heirs.
There is a strict rule in Islamic law that governs the validity of a Will. According to this rule, a Muslim can make a Will in favour of anyone, only to the extent of one-third of his total property. If the Will is made beyond one-third of the property, the consent of the legal heirs is mandatory no matter in whose favour the Will is made.
Essentials of a valid Will
If we talk about the legal validity of a Will under Muslim law, there are certain requisites which make a Will apt and capable of taking effect. Thus, the following discussed requirements must be satisfied:
- The legator must be competent to make a Will.
- The legatee must be capable of taking such endowment.
- The property which is endowed by the legator must be a bequeathable property.
- Free consent of the legator and the legatee.
- The legator must possess testamentary rights over the property.
Who can make a Will?
In order to constitute a valid Will, the competency of the legator is the foremost requirement. A legator is considered to be capable to make a Will if he holds the following discussed features.
1. He must be muslim
2. He must be of sound mind
3. He must have attained the age of majority
By Mitali Singh At LEXCLIQ