MARRIAGE UNDER SPECIAL MARRIAGE ACT, 1954 TO OUST THE APPLICATION OF MUSLIM LAW OF WILLS :
Where a Muslim gets married under the Special Marriage Act, 1954, either to a Muslim or to a non-Muslim he along with his spouse and the children born of this marriage would no longer be governed by the Muslim law of succession but will be governed by the provisions of the Indian Succession Act, 1925.
The same consequences will follow, if two Muslims get married under Muslim law and subsequently get this marriage registered under the Special Marriage Act, 1954.
This marriage will be deemed to be a marriage solemnized under this Act, and the same consequences will follow, viz., the parties to the marriage and the issue of such marriage will, in matters of succession, be governed by the provisions of the Indian Succession Act, 1925 and not by Muslim law.
There is no minimum and maximum time limit specified within which a marriage contracted under Muslim law can be registered under the Special Marriage Act, 1954.
For example, a Muslim managed 22 years gets married to a Muslim girl of the same age, under Muslim law. Sixty years later, when they are of around 82 years, they get their marriage registered under the Special Marriage Act, 1954. The law of succession will now change both with respect to their property and the property of the issue of such marriage. Even if they had executed a Will of their properties prior to such registration, it will be subject to the rules of the Indian Succession Act, 1925.
The primary difference between the rules governing the disposition of the property by a Will under Muslim law and under the Indian Succession Act, 1925 is that under the former generally speaking a testator cannot make the will of more than one-third of his property but under the Indian Succession Act, 1925, a person can make a testamentary disposition of 100% of his property.
Secondly, under Muslims law, there are restrictions on the powers of a testator if he wants to make a bequest in favor of an heir, but under the Indian Succession Act, 1925, ‘the testator has complete freedom to choose the beneficiaries under the Will. He can bequeath the total property to an heir or to a stranger or for a religious or even a charitable purpose.
A Muslim either by getting married under the Special Marriage Act, 1954, or getting his marriage (contracted under Muslim law) registered under this Act, can acquire full freedom to dispose of his total property with the help of a Will in favor of anyone at his pleasure.
OBJECT OF A ‘WILL’ UNDER MUSLIM LAW
Law relating to Wills or testamentary disposition for Muslims is divine in nature i.e. regulated by the Quran and is supplemented by the traditions of the prophet. There is the permissibility of making a Will to the extent of only one-third of the property. The object of the Will is therefore twofold.
First it prevents a person from interfering and defeating the claims of his lawful heirs. So the restriction ensures that at least two-thirds of the property must go by succession.
Secondly, by permitting the testator to bequeath one-third of his property, he is empowered’ to settle just claims of people, at his pleasure, who might not figure in the ‘heirs’ category. These persons might be relatives other than heirs or even strangers to the family. The Will to the extent of one-third can be made for a charitable, pious, or religious purpose. However, if there is a custom to the contrary which limits the choice of the testator in choosing a beneficiary with respect to this one-third property, such a customary practice would be upheld by the law
EXCEPTION TO THE ONE-THIRD RULE
The general rule that testamentary disposition should not exceed one-third of the property is primarily for the benefit of the heirs as is apparent from the Hadith which is treated as the source or origin of the laws relating to Wills. Their rightful claim to the property should not be disturbed. This rule has two exceptions. These exceptions however do not deviate from the basic principle behind the restriction. These exceptions are :
(i) When the testator does not have any heir. In such cases, if the restriction of permissible one-third is applied to him, then the beneficiary will be the government, who will take the property by the doctrine of escheat, while the primary purpose of applying the bequeathable permissibility to the extent of one-third is to protect the rights of the heirs, and not that of the government. An heirless person can thus make a bequest of his total property.
- ii) Where the heirs themselves consent to the bequest in excess of one-third. As the chief objective of the restriction is to safeguard the interests of the heirs, if these heirs whose shares are likely to be adversely affected by the excess bequest themselves give them consent (that should be voluntarily given), the excess bequest will be validated.
Important Terms of Islamic Will:
Al-Wasiyaah – Will
Al-Musi – Testator, who makes a Will.
Al-musa-lahu – Legatee, The person/persons, in whose favor, the Will is created
FORMALITIES FOR MAKING A WILL
There are no specific formalities for making a Will. There is neither any format that is laid down nor is there any requirement that it should be in writing. A Will under Muslim law can even be oral. If it is in writing it need not be signed. It does not require attestation, and if it is attested there is no need to get it registered.
Instructions of the testator written on plain paper, or in the form of a letter, that is clear-cut terms provide for the distribution of his property after his death, would constitute a valid Will.
A Will executed under Muslim law does not require a probate. Where the Will is reduced to writing it is called a ‘Wasiyatnama’. Although no formalities are required to be complied with, a Will in order to be valid and effective must display a bona fide intention on part of the testator to bequeath his property.
Under Muslim law, a Will can be in writing or even oral. In case it is oral, the intention of the testator should be sufficiently ascertained, and in comparison to a Will in writing which is easier to prove, the burden to prove an oral Will is heavy.
The court may require the beneficiary to prove with utmost precision, the exact words of the testator, where and when they were declared, and whether from the contents, an intention to make a Will and the distribution effected, could be ascertained clearly.
ESSENTIALS OF A VALID WILL
For a Will to be valid and capable of taking effect in law, the following requirements must be satisfied:
(i) competency of the testator;
(ii) competency of the legatee;
(iii) valid subject-matter of will; and
- iv) will be within permissible limits.
(i)Competency of the Testator
Every Muslim (man or woman) who is of sound mind and has attained the age of majority can dispose of his /her property under a Will. Only two conditions should be satisfied here:
(i) that the testator should be of sound mind; and
(ii) should be major.
A Muslim who is of unsound mind cannot execute a valid Will, and if he does execute a Will or declares a Will and subsequently is cured of insanity, the Will would still be invalid. A person of sound mind and a major, if makes a Will and subsequently becomes insane, the Will made by him would become invalid, provided the insanity is permanent.
Age of Majority
Under Muslim law, a person becomes major on the completion of the age of fifteen years, and till 1875, a fifteen-year-old Muslim was competent to make a valid Will of his/her property. In 1875, The Indian Majority Act (Act IX of 1875) was passed under which the age of majority was prescribed as eighteen years ordinarily and in case a guardian was appointed by the court for a minor, such person attained the age of majority on the completion of twenty-one years.
Since this Act applies to all Indians who are domiciled in India, including Indian Muslims, in conformity with the provisions of this. Act, a Muslim must be eighteen years old before he can make a valid Will. However, where the court has appointed a guardian for the person or property of a minor or where the Court of Wards has assumed the superintendence of the property of the minor, such minor will attain a majority on the completion of twenty-one years.
(ii) Competency of Legatee :
The legatee or the beneficiary under a Will must be a person competent to hold property. Under Muslim law, sex or the sect of the beneficiary is immaterial. Even a non-Muslim can be a beneficiary under the Will, but he should not be against Islam.
Therefore, a person who renounces Islam and embraces another religion is not a competent legatee, but a person who was born into another religion can be a competent legatee provided he is not hostile towards Islam.
Will in Favor of an Institution
A Will in favor of an institution is valid, as an institution is a competent legatee. However, here also,. the institution should not have been set up to promote anti-Islamic activity or promote any anti-Islamic campaign. It should not be an institution that promotes a religion other than the Muslim religion.
A Will made in favor of a Hindu temple, or a society that propagates Hindu or Christian religion is invalid and would not take effect under Muslim law. But an institution engaged actively in promoting a charity or public benefit is a competent legatee. A society or an institution engaged in promoting education and self-reliance among the poor, taking care of leprosy, and AIDS patients, looking after orphans or old persons would be a competent legatee.
A Muslim cannot make a valid bequest in favor of another for building a Church, or a Jewish synagogue, or a Hindu shrine.
An Unborn Person
The general rule is that the legatee should be in existence on the date of making of the Will. The effective date is the date on which the Will is declared or executed and not the date of operation of the Will or date of the death of the testator.
A child who is in the womb of his mother is treated as in existence if it is born within six months from the date of the making of the Will under Sunni law and within ten months under Shia law. But a bequest to a person not in existence is void.
Legatee Guilty of causing Death of Testator
Where a legatee under a Will is responsible for committing murder or causing the death of the testator, the Will made in his favor would be invalid under Sunni law. It is irrespective of the fact that the death might have been caused accidentally or intentionally. It is also immaterial whether he knew about him being a beneficiary under the Will or not.
Under Shia law, the legatee will be incompetent to receive the benefit under a Will if the death was caused intentionally. The time of making the Will is of no consequence. It might have been made before the act causing the death of the testator was committed or it might have been made in between the time of committing the act which led to his death and the actual death of the testator.
iii) valid subject-matter of will :
The testator is competent to make a valid Will of the property that he owns and which is capable of being transferred. Property must be in existence at the time of his death, as a bequest of something that is not in existence and would be produced in the future is void.
Where under a Will, the legacy is given to the beneficiary who is named therein and an alternative is provided in the same Will, if the primary beneficiary is incompetent to take the legacy, the bequest would be called an alternative bequest and would be valid.
For example, a testator makes a Will in favor of his friend X and provides specifically that if X was dead by the time of the operation of the Will, the property should be taken by another person Y. X died during the lifetime of the testator. The bequest in favor of Y would be valid.
A will that is to operate or take effect on the happening of a particular contingency that may or may not happen, is void and incapable of taking effect in law. A makes a Will of his house in favor of X, subject to the condition that it would operate in his favor provided on the date of his death, X has a son.
On the date of making the Will, X was unmarried. The bequest is void, as the contingency of X getting a son on the date of the death of the testator is a mere possibility that may or may not happen.
- iv) will be within permissible limits:
In contrast to the general permissibility of disposal of property inter vivos, where a Muslim wants to make a Will of his property, he can do it only to the extent of one-third of his property.
The extent of one-third is ascertained after payment of his funeral expenses and debts etc. A bequest that is in excess of this one-third of the estate would not take effect unless the heirs whose shares will be adversely affected give their consent to the excess bequest after the death of the testator under Sunni law, and before or after his death under Shia law.
Where the heirs refuse to give their consent, the bequest would be valid only to the extent of one-third of the property and the rest of the two-thirds would go by intestate succession
DEATH OF LEGATEE BEFORE THE OPERATION OF WILL
Under Sunni law where before the Will can operate, the legatee dies, the bequest will lapse and the property bequeathed would remain with the testator and on his death will go to his heirs in absence of any other disposition by him.
Under Shia law, the legacy will lapse only if the legatee dies without leaving an heir or if the testator, after the death of the legatee, revokes the Will. However, if the testator even after the death of the legatee does not revoke the Will, on the date of operation of the Will, the benefit under it will pass to the heirs of the Legatee.
PROBATE AND LETTERS OF ADMINISTRATION
A Will made or executed under Muslim law does not require probate and can be admitted in evidence if proved duly. Even for establishing any rights in the property of a Muslim intestate, the heirs need not obtain the letters of administration except when they have to deal with the debts due to the estate of the intestate.
Thus where a suit is brought to recover a debt due to the deceased, the court will not pass a decree except on production of probate or letters of administration or a succession certificate. These rules are applicable only .in cases where the recovery of the debts is sought with the help of the court and not otherwise
REVOCATION OF WILL
A Will by its nature is revocable. A testator is not bound by the testamentary disposition that he makes and he can always either change it or cancel it either expressly or even impliedly by his conduct.
Without expressly declaring so, a Will can either be revoked by some conduct of the testator or can be rendered meaningless.
For example, the testator bequeaths Rs. 10 lakh cash to X. After one month he purchases a house with this amount. The bequest in favor of X is automatically revoked. Similarly where the testator gives land to his friend under a Will but a year later gifts the same to his daughter, the bequest in favor of the friend is automatically revoked.