Concept ofAssignment Wills Under on Family Muslim Law Law- Muslim GUIDED BY –PROF. Law DR KAHKASHAN Submitted by – Mohd Abid Hussain Ansari Concept of Wills Under Muslim Law Y. DANYAL Concept of Wills Under Muslim Law Acknowledgement Writing the Acknowledgement for the project in the subject of Family Law is a fairly simple undertaking for anyone who has attended even a single class of Prof. K.D Mam. The clarity, the command and the humour she brings into every class is infectious, making any student believe that there can be no easier subject that the Family Law and that anyone can master it, provided she gives the subject the respect and recognition that Mam herself gives the subject. Furthermore I would like to thank all those people who gave the subject their time and wrote books which I eventually referred. In this matter, I would particularly like to thank Khalid Rashid- Muslim Jurisprudence Dr.Mohammad Nazmi- Mohammadan Law Fyzee: Outlines of Mohammadan Law 4th edn, 365 etc., whose book was precise and the largest reference in this work. Without the contribution of the above said people I could have never completed this project. Mohd. Abid Hussain Ansari B.A.LL.B (Hons) 4th Semester 1 | Page Concept of Wills Under Muslim Law 2nd Year Table of Contents 1. Introduction……………………………………………………………………… ………………….……………….3 2. Introduction to Family Law – Muslim Law……………………………………………………………………5 3. Introduction – Wills (Wasiyat-Nama) ……………………………………………………………..……………6 4. The Importance of Islamic Will………………………………………………………………………..………… 8 5. Origin of the law of Will…………………………………………………………………………………… ………9 6. General Rule – No Formality is required…………………………………………………………………...10 7. Requisites of a valid Will…………………………………………………………………………………… ……12 8. Testator and his competence……………………………………………………………………… …............12 9. Legatee and his Competence……………………………………………………………………..... ..............13 10. Subject of will and its validity……………………………………………………………………………… ….15 11. Testamentary power and its limits…………………………………………………………………………….16 12. Exception to the general rule…………………………………………………………………….................. 17 2 | Page Concept of Wills Under Muslim Law 13. Custom……………………………………………………………………… ………………………………………..18 14. Doctrine of Consent…………………………………………………………………………… …………………..18 15. Revocation of will…………………………………………………………………………………… …………….19 16. Rateable abatement………………………………………………………………………… ……………………..20 17. Lapsing of Legacy……………………………………………………………………………… …………………..22 18. Probate and the letter of administration……………………………..............................................2 2 19. Testamentary disposition of more than 1/3rd of the property…………………...........................22 20. Difference between Sunni and Shia Law……………………………………………………………………..23 21. Conclusion………………………………………………………………… …………………………………………24 22. Bibliography………………………………………………………………… ………………………………………26 Introduction For a beatific and beautiful beginning, I begin my assignment with ‘BISMILLAH’. Infinite glory and thanks be to Allahu ta’ala who bestowed upon us all kinds of favours and honoured us 3 | Page Concept of Wills Under Muslim Law by making Muslims and valued us by making us the Umma of Rasulullah Muhammad (sallAllahu ta’ala’alaihi wa sallam), which is the highest blessing. Allahu ta’ala has mercy upon all people on the earth. He creates useful things and sends them to everybody. He shows the way to Endless Bliss. He guides to the right path whomever He wishes among those who left the true way and followed the way to Kufr (infidelity) and heresy as a result of being deceived by their own nafs (human desires), bad friends, harmful books, and the media. He saves them from eternal calamity. He does not bestow this blessing upon those who are cruel and exceed their limits. He lets them stay on the way of Kufr, which they like and desire. In the next world, He will forgive whomever He wants of those guilty Believers who are to go to Hell, and He will admit them to Paradise. He alone creates every living creature, keeps every being in existence every moment and protects all against fear and horror. If anyone thanks and praises anyone else at any time and at any place for any reason, these thanks and praise thus paid belongs to Allahu ta’ala by rights, for He is the only One who creates and sends all kinds of blessings and goodness. If He would not remind, create, and give all strength, no one could ever do any goodness or harm to anyone else. Only what He wills, comes into existence. No one can do anything against His will. We should mediate and realize that Allahu ta’ala alone blesses every favour upon everybody. Superior and good qualities of men are all His blessings and favours. Our life, reason, knowledge, strength, sense of hearing and speech are all from Him. He always is the one who sends innumerable blessings and favours. He is the one who rescues human beings from trouble and distress, who accepts prayers and keeps away grief disaster. Only He creates sustenance and causes them to reach us. His blessing is so bountiful that He does not cut off the sustenance of those who commit sins. His covering sins is so great that He does not disgrace or hold up the scorn or tear the honesty veil of who do not obey His commands or abstain from His prohibitions. He is so forgiving, so merciful that He does not hurry in punishing those who deserve punishment and torture (‘adhab). He scatters His blessings and favours upon both those whom He likes and His enemies. He does not spare anything from anybody. And as the highest, the most precious of His benefactions, He points out the right path to happiness and salvation. He warns us not to go astray, so that we go to paradise. And He orders us to adapt ourselves to His beloved Prophet Muhammad (sall-Allahu ta’ala’alaihi wa sallam) in order that we may attain all the infinite blessings, endless and inexhaustible pleasures in paradise, and His own approval and love. Thus Allahu ta’ala’s blessings are as obvious as the sun. The favours which come from others, in fact, come from Him. He, again, is the One who makes others intermediaries and gives wish, power and strength to do favours. For this reasons, He is the one who sends all the blessings that come through all places and all people. To expect favours from anybody but Him is like asking for something from the custodian or asking for alms from the poor. The ignorant as well as the educated, and blockheads as well as the intelligent and the keen know that what we 4 | Page Concept of Wills Under Muslim Law say here is right and to the point, for, everything said is obvious facts. It is not necessary even to think them over. Trusting ourselves to the honourable name of Allahu ta’ala, that is, expecting help from Him I would like to start my assignment. May hamd be to Allahu ta’ala. Peace and blessings be upon His beloved Prophet Muhammad (sall-Allahu ta’ala’alaihi wa sallam). May all auspicious prayers be on his Ahl al-Bait and on each of his just devoted companions (as-Sahabat al-kiram). Muslims are required to learn “Islamic Knowledge.” It is divided into two branches, “Religious Knowledge” and “Scientific Knowledge.” So learning Islamic Knowledge as much as necessary is an obligatory duty (Fard) for every Muslim. Introduction – Family Law (Muslim Law) In Indian terminology personal law is very familiar expression. It is not quite difficult to understand and in the same manner not so easy to define. It is very difficult to define personal law but some of the writers have tried to define it so as Mulla has described Personal law as “the law and custom as to succession and family relations”. This definition has been generally accepted as a fairly workable definition or description. According to Justice Bhagwati in Supreme court decision in Pradeep Jain v. Union of India1, has referred to personal law as the law “by which an individual is governed in respect of various matters such as, the essentials validity of a marriage, the effects of marriage on the proprietary rights of husband and wife, jurisdiction in divorce or nullity of marriage, illegitimacy, legitimation and adoption and testamentary and intestate succession to movables”. The applicability of personal law in the country like India depends solely on religion. Hindu, Muslim, Christian, Parsi, e.t.c which are governed by their own personal law as Hindu law, Muslim law, Christian law, Parsi law, respectively. From the religious point of view the personal 1 1984 AIR 1420, 1984 SCR (3) 942 5 | Page Concept of Wills Under Muslim Law law is defined as “that body of law which applies to a person or to a matter solely on the ground of his belonging to or its being associated with a particular religion”. The Muslim Law or Islamic Law (or the Law of Allah) is a part of Family Law. It is a personal law that is applied by courts in regard to family matters when the parties are Muslims. Muslim Law is called Sharia (Shariah or Syariah) in Arabic. Fiqh means understanding of details and refers to the inferences drawn by scholars. Sharia refers to the principles that lie behind the fiqh. The word 'Muslim' is derived from the word 'Islam' and signifies a person who adopts the faith of Islam. Muslim Law in general draws no distinction between religious life and secular life. Introduction – Wills (Wasiyat-Nama) Will-The Primary Instrument of Muslim Testamentary Succession “The instincts and affections of mankind, in the vast majority of instances, WILL lead man to make provisions for those who are nearest to them in kindred and who in life have been the objects of their affections.” Under the Muslim law, the concept of making a will is desirable and virtuous act. “A will from the Muslim point of view is a divine institution, since its exercise is regulated by the Quran al-kerim. It offers to the testator the means of correcting to a certain extent the law of succession…of recognizing the services rendered by a stranger, or the devotion to him in his last moments…” The Prophet Muhammad (sall-Allahu ta’ala’alaihi wa sallam) has said: “Allahu ta’ala has bestowed (the option) upon you in 1/3rd of your property at the last moment of your life to increase your good deeds.” “A Muslim, who holds property, has no right to pass even two nights without making and keeping a written will with me.” Ibn Umar said, “since I heard this from my Prophet Muhammad (sall-Allahu ta’ala’alaihi wa sallam), I have not passed a single night without having my will with me.” 6 | Page Concept of Wills Under Muslim Law A will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. 2 The will is not transfer but a mode of devolution. 3 According to Hedaya,4 an authoritative book on Sunni Law, “Wasiyat means an endowment with the property of anything after death, as if one person should say to another, “give this article of mine after my death to a particular person.” The thing so given is termed the legacy or the subject of the bequest; the person who wills that it be given is denominated testator; the person in whose favour the will is made is called the legatee and the person appointed to carry the will into execution is called the executor or the wasi.”5 The Muslim testamentary succession is entirely governed by the Muslim Personal Law which covers the powers to make the will, the nature of the will, the execution procedure, conditions of validity etc. The term ‘wasiyat' means an endowment with the property of anything after death. To bequeath it, in the language of law, to confer a right of property in a specific thing, or in a profit or advantage in the manner of gratuity postponed till after death of the testator. The document containing the ‘will' is the wasiyat-nama. A wasiyat can be made orally or in writing in which case it does not have to be attested. Though it is in writing, it need not be signed by the testator and attested by the witnesses. The option of revocation or modification in the will is available to the testator in his lifetime. The essential condition for a valid will in Muslim law (as that in the Hindu testamentary succession) is that only property with absolute ownership of the testator can be bequeathed. A bequest which is contingent, or conditional or in the future or is alternative to another, pre-existing one, would be void. Restrictions Muslims: on testamentary capacity of Islam recognizes the indispensible necessity that a man should have the power of making bequests. This however does not imply that he has the power to encroach upon the share of his legal heirs as stated in the holy Quran. Quoting Ameer Ali, “the Prophet has declared that power 2 Section 3 of the Indian Succession Act, 1925 3 Kaniz Zohra v. Deputy Director, Consolidation, 1968 R.D. 9. 4 Hamilton’s Hedaya (Grady ed.), 670. 5 A Will is defined in Fatwa-i-Alamgiri “to be the conferment of a right of property in a specific thing, or in a profit or advantage, in the manner of gratuity to take effect on the death of the testator. According to Sharai-ul-Islam an authoritative book on Shia Law, “making one person of another as proprietor of the corpus or its proceeds of his property after one’s own death is called will.”-Beirut ed., p.258. 7 | Page Concept of Wills Under Muslim Law should not be exercised to the injury of lawful heirs”. Hence there are restrictions imposed on the testamentary capacity of Muslims. Muslim testamentary capacity is regulated in two ways: 1. The One third rule: This rule states that a Muslim cannot make bequest of more than one-third of his net property, after the discharge of debts and funeral expenses, if there are heirs present. Even for bequeathing the 1/3rd share, the Muslim has to obtain the consent of the other heirs. All schools of Muslim Law except the Ithana Ashari School lay down that bequest of more than one third unless consented to by the heirs is invalid or a custom or usage so permits. 2. The consent of the heirs to confer in excess of one-third through will: As mentioned above, a Muslim has to obtain consent of all the surviving heirs to devolve property in excess of one-third through will. This rule is in place to ensure that the heirs have voluntarily consented to the infringement of their right in the testator's property and are not wronged in anyway. Such consent may be through words or implied conduct, but not through silence Another limitation on the testamentary capacity is that this power should not be used to benefit one particular heir, unless consented by other heirs. In the absence of such approval, the will unjustly enriching one heir over all others shall not be recognized as a valid will. A Will from the Musalman’s point of view is a divine institution, since its exercise is regulated by Quran al-kerim. It offers to the testator the means of correcting to a certain extent the law of succession, and of enabling some of the relatives who are excluded from inheritance to obtain a share in his goods and of recognizing the services rendered to him by a stranger, or the devotion to him in his last moments. At the same time the Prophet Muhammad (sall-Allahu ta’ala’alaihi wa sallam) has declared that the power should not be exercised to the injury of the lawful heirs. 6 The exercise of the testamentary powers is restricted to a third of the estate in the Muslim system so as not to deprive the lawful heirs of their just claims. A document embodying the will is called Wasiyatnama. Elements of will: Will is a conferment of right to one’s property on another. This conferment of right is to take effect after the death of the testator. The significance and meaning of the word ‘conferment’ in the definition is that the conferment must be complete and should not be a mere intention to confer the right of property. The second 6 2 Str.H.L., 453 (M. Sautayra) 8 | Page Concept of Wills Under Muslim Law element of the definition connotes the most important characteristics of a will and that is that the right conferred in the property is to take effect after the death of the maker (testator) of the will. The Importance of 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 al-Bukhari) "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) Origin of the law of Will It is reported by Bukhari7. Sad ibn Abi Wqqas said, ‘The Prophet Muhammad (sall-Allahu ta’ala’alaihi wa sallam) used to visit me at Mecca, in the year of the Farewell pilgrimage, on account of (my) illness which had become very severe.’ So I said, ‘my illness has become very severe and I have much property and there is none to inherit me but a daughter, shall I then bequeath, 2/3rd of property as a charity.’ He said, ‘No’, I said, ‘Half’, he said, ‘No’. Then he said, ‘bequeath 1/3rd and 1/3rd is much for if thou leavest thy heirs free form want, it is better than that thou leavest them in want begging of (other) people; and thou art rewarded for it, even for that which thou puttest into the mouth of thy wife.” Hence, the object of wills according to the traditions of the Prophet Muhammad (sall-Allahu ta’ala’alaihi wa sallam) is to provide for the maintenance of the members of family and other relatives where they cannot be properly provided for by the law of inheritance. A tradition from the Prophet Muhammad (sall-Allahu ta’ala’alaihi wa sallam) lays down that it is ethically incumbent upon a Muslim to make arrangements for the distribution of his property after his death and that a Muslim having property should not sleep even for two nights unless he has made a written will. But in order to protect the rights of the lawful heirs, the testamentary power is limited to 1/3rd of the property. Thus, the policy of the Muslim Law is to permit a man to give away the whole of his property by gift inter vivos, but to prevent him, except for 1/3rd of his 7 Mohammad Ali Manual of Hadith (Lahore 1994), 334-35. No.2 9 | Page Concept of Wills Under Muslim Law estate, from interfering by will with the course of the devolution of the property according to the laws of inheritance.8 General Rule – No Formality is required As a general rule no formality is required in for making a will. Any expression of unequivocal expression will suffice. Orally or in writing – a will may be made either orally or in writing. It is not necessary that a testamentary disposition should be in writing. If it is made orally, no particularly form of words are required, so long as the intention of the testator is clear. If the will is in writing, it need not even be signed by the testator or attested by the witnesses, because the verse in the Quran alkerim regarding witnesses is considered merely as a recommendation, and is not mandatory.9 In Mohamed Altaf v. Ahmed Buksh10, it was held by the Privy Council that by the Muslim Law no writing is necessary to make a will valid, and no particular form, even verbal declaration is necessary as long as the intention of the testator is sufficient ascertained. In Mazhar Husain v. Bodha Bibi11, the Privy Council held that a letter written by a testator shortly before his death and containing directions as to the dispositions of his property constituted a valid will. In the case of Aulia Bibi v. Alauddin12, it was found that a document purporting to be the will of a Muslim lady was in fact drawn up in accordance with instructions given by the testatrix to a lawyer at a time when she was competent to make a will. The Allahabad High Court held that such a document was a valid will notwithstanding the absence of the signature of the testatrix. 8 Ameer Ali:Mohammedan Law (Vol.1) p.186 9 Quran al-kerim 50-106. “The evidence of two just witnesses from amongst you at the time of making the will”. 10 (1876) 25 W.R. 121 (PC) 11 21 All 91 (PC) 12 (1906) 28 All 715 10 | P a g e Concept of Wills Under Muslim Law In Venkat Rao v. Namdeo13, it was held by the Privy Council that the burden of establishing an oral will is always a very heavy one on those who assert; it must be proved with the utmost precision, and with every circumstance of time and place. The court shall put such a will into force only when it is quite evident from the circumstances and statements of the witnesses as to the actual words uttered by the testator and the Court is able to conclude from the circumstances and the evidence the real intent of the deceased to the fact that it should be regarded as his last will. Besides, In Mahabir Prasad v. Mustafa14, the court must also be completely satisfied with the contents of the instruction of the testator. Muslim Law of will and the Indian Succession Act, 1925:The provisions of Indian Successions Act, 1925 are not applicable to Muslims. However, a Muslim cannot claim immunity if his marriage was held under the Special Marriage Act, 1954. In such cases the provisions of the Indian Successions Act, 1925 shall be applicable even though the will was made before or after the marriage. Where a will is governed by the Muslim Law it will be subject to the provisions of the Shariat Act, 1937. 13 AIR 1931 PC 285 14 AIR 1937 PC 174 11 | P a g e Concept of Wills Under Muslim Law Requisites of a valid Will The essential requisites of a valid will, under Muslim Law are as follows: The testator must be competent to make the will. The legatee must be competent to take the legacy or bequest.15 The subject of bequest must be a valid one. The bequest must be within the limits imposed on the testamentary power of a Muslim. Testator and his competence. Every adult Muslim of sound mind can make a will. Thus a minor or a lunatic are not competent to execute a will. A minor is incompetent to make a will but when a will is made by a minor it may subsequently be validated by his ratification on attaining majority. In case of Abdul Manan Khan v. Murtaza Khan16 Patna High Court held that any Muslim having a sound mind and not a minor may make a will to dispose of the property. So far as a deed of will is concerned, no formality or a particular form is required in law for the purpose of creating a valid will. An unequivocal expression by the testator serves the purpose. A bequest made by a person of unsound mind cannot be deemed valid, if he becomes of sound mind subsequently. In the converse case, a bequest made by a person, while of sound mind, becomes invalid, if the testator is permanently disabled by unsoundness of mind. Where the testatrix clearly expressed herself that after her death, the properties will devolve upon her heirs in the manners as has been described in detail in the document the same constituted a will and not a deed of partition especially when the beneficiaries did not have any share in the properties of the lady executing the document during her lifetime.17 Who is a Minor? Who is a minor that can be understood by two ways:15 A.M.Khan v. Mirtuza Khan AIR 1991 Pat.154 16 AIR 1991 Pat. 155 17 Ibid. 12 | P a g e Concept of Wills Under Muslim Law Who is minor as per Muslim Law? Who is minor as per Indian Majority Act? According to Muslim Law, the age of majority is 15 years and minority of a person terminates at that age. But this rule is not applicable to wills in India since the age of majority, in case of will is governed by the Indian Majority Act and not by the personal law. According to the Indian Majority Act, the minority terminates at the age of 18 years, but if the minor is one whose guardian has been appointed by the Court, the minority will terminate at the age of 21 years. Thus a person of 18 years or 21 years, as the case may be, is competent to make a will. Will of a person who is committing suicide. Under Sunni Law, the will of a person committing suicide is valid. But under Shia Law, a will made by a person who has done any act towards the commission of suicide is not valid, but if the will is made before doing of any act towards the commission of suicide, it is valid. In case of Mazhar Husen v. Bodha Bibi18 the deceased first made his will, and afterwards took poison. The Privy Council held that the will was valid, though he had contemplated suicide at the time of making the will. A will procured by undue influence, coercion or fraud is not valid, and the courts take great care in admitting the will of a pardanashin woman. Legatee and his Competence. Any person capable of holding property may be the legatee under a will. Thus sex, age, creed or religion is no bar to the taking of a bequest. No one can be made the beneficial owner of the shares against his will. Therefore, the title to the subjects of bequest can only be completed with the express or implied assent of the legatee after the death of the testator. 1. Bequest to an institution –A bequest may be validly made for the benefit of an institution. 2. Bequest to a non-Muslim – A bequest in favour of a non-Muslim is valid. In Hedaya the following verses of the Quran al-kerim has been quoted:“Ye are not prohibited, O believers, from acts of benevolence towards those who subjects themselves to you, and refrain from battles and contentions.” 18 21 All.91 13 | P a g e Concept of Wills Under Muslim Law It is, therefore, clear that a Muslim can give his property by bequesting the same in favour of a non-Muslim is not hostile towards Islam. 3. Bequest to testator’s Murderer – According to Sunni Law, a bequest to a person who caused the death of the testator whether intentionally or unintentionally is invalid. Under Hanafi Law, a will in respect of a person who has caused the death of the testator can be validated if the heirs have given their consent. But according to the Shia Law, it is invalid if it is caused intentionally and not if accidentally or unintentionally. 4. Bequest to an unborn person – A child who is born within 6 months of the date of making the will is treated as a legatee in existence and hence competent to take the bequest. But in Shia Law, a bequest to a child in the womb is valid, if it is born in the longest period of gestation, i.e., ten lunar months. 5. Bequest for a charitable object – A bequest for the benefit of a religious or charitable object is valid. The only requisite is a general intention to charity, e.g., where a bequest is made in the way of God, it is valid and the legacy must be spent on good and pious objects. Under Muslim Law, certain restrictions have been imposed on the rights of the legators to make a will depriving the rights of the heirs. The Calcutta High Court has said that the restriction against will to heirs cannot be got over either under colour of a religious bequest or by having recourse to a partition deed between the legato and his heirs. In case of Abdul Cader v. Turner19 it was held by the court that the bequest to a person not in existence at the time of death of the testator is void. But a bequest in favour of a child in the womb is valid provided it is born within 6 months from the date of the will. A bequest may be made by a Muslim in favour of any person capable of holding the property, the religion of the legatee being immaterial.20 In case of Chunnu Bibi v. Mohammad Riaz21 the Lahore High Court held that: “the Muslim law contains two rules about the existence of the legatee in order that he may benefit from the will; one being that he must be in existence at the time of the making of the will either actually or presumably, the presumed existence meaning birth within 6 months of the will; and the other that he should be in existence at the time of the death of the testator. At first sight 19 (1894) 9 Bom 158. 20 Fyzee: Outlines of Mohammadan Law 4th edn, 365. 21 P.L.D. (1956) Lahore 786. 14 | P a g e Concept of Wills Under Muslim Law there appears that the two rules are irreconcilable, but a careful consideration reveals that the two rules deal with two different sets of circumstances and are completely reconcilable with each other.” Subject of will and its validity In order to constitute a valid will, followings are the requisites: 1. The property must be capable of being transferred; 2. The property must be in existence at the time of testator’s death. It is not necessary that it should be in existence at the time of the making of the will; 3. The testator must be the owner of the property to be disposed by will. The validity of following bequest under Muslim Law: Bequest in future:A bequest cannot be made of anything to be performed or produced in future. Contingent bequest: Bequest of a property which is conditional to take effect on the happening or not happening of an uncertain event is void. Alternative bequest: An alternative bequest of property, i.e., to one or failing him to the other person is valid. The bequest to the 1 st person if he is in existence at the time of testator’s death will be deemed to be absolute. Hence he will take the bequest. If the 1st person predeceases, the testator, the 2nd person will take the bequest. Conditional bequest: A will subject to certain conditions is called conditional bequest. A bequest with a condition which derogates from the completeness of, the grant takes effect as if no condition was attached to it, for the condition is void. The condition so attached need not be fulfilled and the legatee gets absolute unconditional interest in the property bequeathed to him. For example, A makes a will of certain property to B. It is provided by the willdeed that B shall not sell the property. The restraint against the sale is void, and B takes the property absolutely.22 Bequest of life-estate: Sunni Law treats a bequest to life-estate as bequest with a condition attached to it and as such the rule of a conditional gift applies, i.e., the bequest takes effect while the condition becomes void, for instance, a 22 Babu Lal v. Ghansham Das, AIR 1992 All 205; Abdul Karim v. Abdul Qayum, (1906) 28 All 342. 15 | P a g e Concept of Wills Under Muslim Law bequest to A for life and after his death to B is in its legal effect a bequest to A absolutely and B takes nothing under it. Thus a bequest of life-estate is not recognized under Muslim Law. Testamentary power and its limits: The testamentary capacity of a Muslim is limited. He does not possess an unlimited power of making disposition by will. There are two-fold restrictions on the power of a Muslim to dispose of his property by will. The two-fold restrictions are in respect of the person in whose favour the bequest is made, and as to the extent to which he can dispose of his property. 1. Limitation as regards the person. - The general rule in this regard has been very clearly laid in the case of Ghulam Mohammed v. Ghulam Hussain.23 It was held that a bequest in favour of an heir is not valid unless the others heirs consent to the bequest after the death of the testator. In Fukan v. Mumtaz Begum24 the Rajasthan High Court had confirmed the well-settled principle that a bequest in favour of an heir, even to the extent of 1/3 rd was not valid under the Hanafi Law, unless the other heirs consented it, expressly or impliedly after the death of his testator. In Abdul Manan Khan v. Murtaza Khan25, The Patna High Court held that a bequest in favour of an heir is invalid unless the other heirs consent to it after the testator’s death. A provision has been made in law to obtain consent of the heirs after the death of the testator; if any reason of a will more than 1/3rd of the properties is sought to be bequeathed to an outsider and to any extent to an heir. Such consent can be inferred from conduct. Acts of attestation of will be legatees and taking of possession by them of property bequeathed could signify such consent. In case of Khajoorunissa v. Raushen Jehan26, The court clears the difference between a gift and a will. It was held that the policy of Mohammedan Law appears to prevent a testator from inferring with the course of devolution of property according to law among his heirs. Under Shia Law no consent is required: 23 54 Alld. 98: 1932 PC 81. 24 AIR 1971 Raj 149. 25 AIR 1991 Pat. 155. 26 3 I.A.291,307 16 | P a g e Concept of Wills Under Muslim Law According to Shia Law, a testator may give a legacy to an heir so long as it does not exceed 1/3 rd of his estate. Such a legacy is valid without the consent of the other heirs. But if the legacy exceeds 1/3rd it is not valid unless the other heirs consent thereto; such consent may be given before or after the death of the testator. But where the whole estate is to be bequeathed to one heir and the other heirs are excluded entirely from inheritance the bequest is void in its entirety.27 2.Limitation as regard the property. - The general rule with regard to the extent of property that may be disposed of by will is that no Muslim can make a bequest of more than 1/3rd of his net assets after payment of funeral charges and debts. Exception to the general rule: Under Hanafi Law, a bequest or more than 1/3 rd of the net assets may be valid, if the heirs, whose rights are 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 testator’s death. The above rule of bequeathed 1/3rd 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. Custom Among Eunuchs community of Muslim Guru-Chela system was prevalent. As per their customs a Muslim could not have willed more than 1/3rd of his property without the consent of his chela to an outsider, the will in respect of entire property of a Guru, in favour of an outsider could not be held to be valid. Under this custom a chela alone is the heir of his Guru. Though the Muslim Law does not debar a Muslim from executing a will of his property in favour of any one including the persons in whose favor the will is to be executed would not be contrary to this law. The Court held such custom does not violate the aforesaid law. It only limits the choice of legatee without effecting the right to execute the will and such a custom was not either against public policy or the Muslim Law.28 Consent 27 Husaini Begum v. Mohammad Mehdi, (1927) 49 All.547. 28 Illyas etc. v. Badshah etc. AIR 1996 M.P.634. 17 | P a g e Concept of Wills Under Muslim Law According to the exceptions to general rules a bequest of more than 1/3 rd of the testator’s property is valid if the other heirs give their consent to it. Similarly, a bequest to an heir with the consent of heirs is also valid. There is no difference between Sunni and the Shia Schools as to the consent of the heirs if the bequeathed property exceeds 1/3 rd of the estate. Certain rules which should be followed they are listed below: Consent when to be given? –According to Sunni Law, the consent must be given after the death of the testator. Consent given during his lifetime is of no legal effect. Under Shia Law, the consent may be given either before or after the death of the testator. Consent of heirs means consent of those persons who are heirs of the testator at the time of his death, not the consent of a presumptive or would be heir. Such consent must be free consent. A consent given under undue influence, fraud, coercion or misrepresentation is no consent at all and it would not bind the person so consenting. Consent how to be given? - Consent may be either express or implied. Accordingly, the attestation of will by the heirs and acquiescence in the legatee taking possession of the property has been held to be sufficient consent. Similarly, when the heirs did not question the will for three quarters of a century and the legatee had taken the allowances month after month, it was held that the conduct of the heirs amount to consent. Consent of some of the heirs.- In cases where only some of the heirs give their consent the shares of those consenting will be bound, and the legacy in excess is payable out of the consenting heir’s share. Consent by heirs after the death of the testator. - A bequest in favour of an heir is invalid unless the other heirs consent to it after the death of the testator. A provision has been made in law to obtain consent of the heirs after the death of the testator; if any reason of a will more than 1/3rd of the properties is sought to be bequeathed to an outsider and to any extent. Consent of an insolvent heir. - The consent of heirs who are insolvent has been held effective in validating a bequest. Consent not rescindable. - Consent once given cannot be subsequently rescinded. Revocation of will Muslim Law confers on a testator unfettered right to revoke his will. He may revoke it at any time. The revocation may be either express or implied. 18 | P a g e Concept of Wills Under Muslim Law Express revocation: An express revocation may be either oral or written. For example- A makes a testamentary disposition of land in favour of B. At any time after making the dispositions, he says “the land that I gave to B is for X.” These words will amount to express revocation of the bequest. In interpretation of the wills, the intention of the testators is of paramount importance. Thus, if the testator bequeaths by will the same property to two or more persons they will share the property equally. Implied revocation: Revocation of a bequest may be implied e.g., where the testator subsequently transfer the subject-matter of will or destroys it, or completely alters its nature or makes such additions to it without which the property cannot be delivered, etc. where A bequeaths a land to B and subsequently builds a house over it, the bequest stands revoked. Similarly, where the subject matter of bequest is a house and the testator sells it, or makes a gift of it, the revocation is complete by implication. Subsequent will: Where a testator makes a will, and by a subsequent will gives the same property to someone else, the prior bequest is revoked. But a subsequent bequest though it be of the same property, to another person in the same will does not operate as a revocation of the prior bequest, and the property will be divided between the two legatees in equal shares. General principles under the concept of will Rateable abatement:By rateable abatement is meant “proportionate reduction.” Where a bequest of more than 1/3rd of the property is made to two or more persons and the heirs do not consent, under Hanafi Law, the shares are reduced proportionately to bring it down to 1/3rd or in other words, the bequest abates rateably. Bequests for the purpose of rateable abatement are divided into bequests for pious purposes and bequest for secular purposes. As a general class, bequests for pious purposes are decreased proportionality to bequest for secular purposes, and do not have precedence over them. Bequest for Pious Purpose fall under three classes:I. Bequest for Faraiz: Under this head, that is, purposes expressly ordained in the Quran al-kerim namely: a) Hajj (Pilgrimage) b) Zakat (Poor rate) c) Expiation for prayers missed by a Muslim. 19 | P a g e Concept of Wills Under Muslim Law These are obligatory for Muslims. II. III. Bequest for Wajibat: Under this, purposes not expressly ordained, but which are in themselves proper, for example, charity given on the day of breaking fast. These are singly recommended not obligatory. Bequest for Nawafil: Under this, bequests of a purely voluntary nature, e.g., bequest to the poor, or for building a mosque, or a bridge, or an inn for travellers of these three classes bequest of the first class take precedence over bequest of the second and the third class and bequests of the second class take precedence over those of the third. To take a concrete illustration, assuming a Hanafi testator leaves Rs.3000/- jointly to A and B and Rs.3000/- for pious purposes designated by him. The bequeathable third amounts to Rs.4000/-; hence Rs.2000/- will be allotted to the secular bequest and Rs.2000/- to the pious ones. Out of the sum of Rs.2000/-. A and B will each receive Rs.1000/-. The Shia Law does not accept the principle of rateable reduction. The rule of Shia School is that, of the several bequests, the first in time prevails until the bequesthable third is exhausted; and for the purpose of this rule where several bequests are to be found in a will, priority is determined by the order in which they are mentioned. For example: if a testator leaves 1/3rd of his estate to A, 1/4th to B and 1/6th to C and the heirs do not consent to these bequests. A takes 1/3 rd of the estate and B and C will take nothing, but if instead of 1/3rd, 1/12th had been left to A, then A would have taken 1/12 th and B 1/4th, but C who was mentioned last would get nothing, as the legal third is exhausted between A and B. Exception: There is however, an exception to this rule. If a man bequest 1/3 rd of his estate to two different persons in the same will, the later bequest prevails. For instance, a testator by will gives 1/3 rd of his estate to Hussain and later he says that 1/3rd be given to Dolly, here Dolly gets 1/3rd to the exclusion of Hussain. In the absence of heirs and as against the right of the state to take by escheat, the testator may bequeath the whole of his property by will. Where a testator dies leaving only a wife or husband and no blood relations, if he is a man, he is entitled to bequeath 5/6 th of his estate and if a woman to bequeath 2/3rd of her estate. Shiite law on this point has a different rule. Here, if the deceased leaves only a husband or wife surviving, the survivor is entitled to take his a her Quranic Share in the estate, amounting to 1/2nd or 1/4th as the case may be, but not entitled to take the residue of the estate by return. Moreover, the 1/2nd or 1/3rd Quranic Share is determined with reference to the net estate, i.e., 20 | P a g e Concept of Wills Under Muslim Law after deducting the debt of creditors of the deceased, funeral expenses and the right of the deceased to make a will to the extent of 1/3rd. Lapsing of Legacy: Under Sunni Law if the legatee dies before the death of the testator the legacy lapses and forms part of the testator’s estate. Under Shia Law in the above case, the legacy does not lapse but passes to the heir of the legatee, unless it is revoked by the testator. It will lapse, only if the legatee has no heir. Probate and the letter of administration: A Mohammedan’s will may after the due proof, be admitted in evidence though no probate has been obtained.29 Except as regards debts due to the estate of a deceased. No letters of administration are necessary to establish any right to the property of a Muslim who has died intestate.30 Testamentary disposition of more than 1/3rd of the property: Where the testator has disposed of more than 1/3rd of the property by way of will is not void. It is only invalid. Such a will can be legalized after obtaining the consent of the heirs. The heirs may give their consent expressly or impliedly. Under Hanafi Law the consent of the heir has to be obtained after the legator’s death. In the absence of the consent of any heir, the will shall be void to the extent of his share. The legato is competent to make a will in respect of any particular heir.31 Shia Law is also identical to Sunni Law. Under this, a testator can dispose of more than 1/3 rd of the property. The heirs are fully competent to give their consent during their lifetime and it need not be ratified after his death. Difference between Sunni and Shia Law Under Sunni Law i. Bequest of any portion to an heir without the consent of others heirs is invalid. 29 Mohammad Yusuf v. Hargovanddas, 47 Bom.231. 30 Section 212 (2)- Indian Succession Act, 1925. 31 Mohd. Ala v. Husain Ali, AIR 1944 Oudh 25. 21 | P a g e Concept of Wills Under Muslim Law ii. iii. iv. v. vi. vii. viii. A bequest to a child in womb is valid if born within 6 months. A legatee who causes death even by accident is disentitled. Heir’s consent should be given after the death of the testator. Recognition of rateable distribution. A will of a person committing suicide is valid. If the legatee does not survive the testator, the legacy lapses and reverts to the testator. Acceptance of the legacy before the testator’s death is of no effect. Under Shia Law i. ii. iii. iv. v. vi. vii. viii. A bequest to the extent of 1/3rd can be made to an heir without the consent of others heirs. It is valid even if born in the longest period of gestation, i.e., 10 months. Only intentional murder disentitles a legatee. Heir’s consent may be given before or after the death. Rateable distribution is not recognized under Shia Law. It is valid only when the will is made before taking any step towards the act of suicide. The legacy does not lapse but passes to the heirs of the legatee. It reverts to the testator when the legatee dies without leaving any heir. Acceptance of the legacy during the testator’s life time is lawful. Conclusion A ‘will’ is a legal document through which a person declares his/her wishes and instructions on how his/her property and possessions should be disposed of, distributed or given away after his/her death. Allahu ta’ala says in the Glorious Quran al-kerim: “Prescribed for you when death approaches (any) of you if he leaves wealth (is that he should make) a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.” [Surah Al-Baqarah 2:180] 22 | P a g e Concept of Wills Under Muslim Law Based on this verse from the Quran al-kerim, it was earlier obligatory upon the Muslims to make a will before death. But after the revelation of the verses on inheritance (i.e. Surah Nisa 4:11-12), wherein Allahu ta’ala legislated fixed shares of inheritance for deserving heirs, it is now not compulsory in Islam for a person to write a will in his lifetime, because his estate is divided as prescribed in Shari’ah among his living heirs. So after the revelation of Surah Nisa 4:11-12, in an Islamic country where Islamic Shari’ah is followed, it is not required making a will. In a non-Muslim country like India that has a separate Muslim Personal Law, to make a will is optional. If a Muslim fears that the non-Muslim country where Muslim Personal Law is followed has chances of deviating from the Shari'ah in this respect, it is preferable to make a will as per Qur’anic guidelines – otherwise it is not required. Such a will is legally valid in India. However, in a non-Muslim country like U.S.A. that does not have a separate Muslim Personal Law, according to me it is compulsory for a Muslim to make a will as per the guidelines laid by Allahu ta’ala in Surah Nisa (4:11-12), so that it forces the law to execute Islamic Shari'ah as per your will. It is the right of every citizen of a non-Muslim country, to will his property as per his desire, because in the absence of will each country has its own method of distributing the wealth. It may be obligatory as well on a person to make a will, with regard to the dues of others where there is no proof, lest they be lost or neglected, because the Muhammad (sall-Allahu ta’ala’alaihi wa sallam) said: “It is not permissible for any Muslim who has something to will to stay for two nights without having his last will and testament written and kept ready with him.” [Narrated by al-Bukhari al-Wasaayaa 2533]. One should also ‘will’ if he fears some kind of corruption or dispute among the heirs, especially in a non-Muslim country. However, one does not have the right to make a will for the legal heirs as per his own inclinations (or wishes), because Allahu ta’ala has defined the share of each heir, and He has explained who inherits and who does not inherit. So it is not permitted for any person to transgress the limits set by Allahu ta’ala. “And whoever disobeys Allah and His Messenger and transgresses His limits – He will put him into the fire to abide eternally therein, and he will have a humiliating punishment” [Surah Nisa 4:14] Allahu ta’ala has permitted us to make a will to whomsoever we wish other than the legal inheritors for a maximum of one-third of our wealth, The Muhammad (sall-Allahu ta’ala’alaihi wa sallam)said: “Allahu ta’ala was being generous to you when He allowed you to give one-third of your wealth (in charity) when you die, to increase your good deeds.” [IbnMaajah,Kitaab al-Wasaayaa, Hadith No. 2709]. Therefore one can will up to one-third of his wealth to be used for charitable purposes or else one can also give it to the people apart from the legal heirs, because the Muhammad (sall-Allahu ta’ala’alaihi wa sallam) said:“There is no will for the heirs. [Tirmidhi, Kitaab al-Wasaayaa, Hadith No.2120] And Allah knows the best 23 | P a g e Concept of Wills Under Muslim Law Bibliography I. II. III. IV. V. VI. VII. Khalid Rashid- Muslim Jurisprudence Dr.Mohammad Nazmi- Mohammadan Law Fyzee: Outlines of Mohammadan Law 4th edn, 365 Roop ki Shobha Delhi Edn. At Jamia Nagar Behesti Jewer. The Muslim Law of India – Tahir Mehmood Principles of Islamic Jurisprudence by Prof. Mohammad Hashim Kamali VIII. Islamic Jurispudence: Mahhmoud A. El-Gamal IX. Mulla, Principles of Mohammedan Law, 19th ed, (Hidayatulla), Lexisnexis Butterworths, New Delhi, 1990. Articles Hussain Abid, The Islamic Law Of Wills, available at http://www.hoor-al-ayn.com/articles/Misc/The%20Islamic %20Law%20Of%20Wills.pdf( last visited on March 25, 2010). 24 | P a g e Concept of Wills Under Muslim Law Khan Kamaluddin, Law of Wills in Muslim Law Muslim Testamentary Succession, available at http://www.twocircles.net/legal_circle/law_wills_muslim_law_mu slim_testamentary_successionkamaluddin_khan.html( last visited on March 22, 2010). Also help taken from these people and committee: Maulana Mehndi Hasan ( Rajdhanwar, Giridih, Jharkhand) Anjuman-e-Khuddam-e-Mazhari (Fatehpuri) Maulana Sikander (Aauliya Masjid, Mehrauli) Maulana Mukhtar Ali (Jama Masjid, giridih, Jharkhand) 25 | P a g e