A will is a testament which enables a person to dispose of his own property to someone which whom he wants to give after his death. A will comes into an 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’ and ‘Testator’ and in whose favour the will is made is known legatee.
A very famous Muslim scholar Ameer Ali define of will from the point of view of Mussalman as a divine institution because it exercise is regulated by holy Quran at the same time Prophet had proclaimed that search testamentary power must not exert any damage to the lawful heirs.
It is strict rule in Islamic law that governs the validity of will according to this rule on Muslim can make a will in favor of anyone only to the extent of one third of its Total property if the will is made beyond one third of the property the consent of the legal hair is mandatory no matter in whose favor 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 ?
- He Must Be Muslim – In Islamic Law a will made by a muslim is only considered as a valid will. At the time of the execution of will the legator must be muslim then only the will is governed by the Muslim Personal Law.
- Soundness of mind – At the time of will is being made , a legator must be competent to understand his action and legal consequences of what he is doing when the will is being made. It is important that he also capable to understand the circumstances till his death.If a legator is of sound mind when the Will is declared and
subsequently turns insane and remains the same till death then, the Will made by such legator becomes void. On the other hand, if a legator executed a Will while he is insane then also the Will is considered as null and void even if he recovers the insanity afterwards and remains the same till death.
- Age Of Majority – The legator must attain the age of majority at the time of execution of will. The age of majority in Muslim law is regulated by Indian Majority Act in which the majority is specified as 18 year in ordinary case and 21 year if the person is under the supervision of court of ward. So at the time of execution of will the legator should be 18 or 21 year.
- Attempt to suicide by Legator – If a Will is executed by a person who has attempted to commit suicide, such a Will is contemplated as void under the Shia law. The logic behind this rule is that if a person has attempted suicide, he cannot be held in his normal state of mind rather, he is assumed to be mentally unstable and disturbed.
For example, a person who takes poison or seriously hurt himself and executes a Will before his death then, the Will is declared as null and void. However, under Sunni law, a Will executed in such circumstances is completely valid. Moreover, both Shia and Sunni law upheld the validity of a Will declared by a legator before attempting to commit suicide.
- Consent Of Legator – At the time of execution of will, the free consent of legator is mandatory. If the will is executed under coercion, fraud, Misrepresentation or Undue influence then the will is treated as null and void.