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Concept of Wasiyat (Will) under Muslim Law
A “will” according to the Section 2(h) of Indian Succession Act, 1925, “will is the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death.”
Under the Muslim law, the term used is Wasiyat and it is an instrument by which a person makes an arrangement with regard to his property to take effect after his death and it is a mechanism that can be amended during his life and can be revoked. It is in a way the last desires of the person of how his property would be taken care of and distributed after his death.
Under Muslim law, every Muslim can make a will if he is of the sound mind and has attained majority i.e. above the age of 18 years and in case there’s a guardian taking care of him or his property then 21 years. A minor’s will is void but it becomes valid upon him ratifying it after attaining majority. A will made by a lunatic is void and a will made by a sane person becomes void if he becomes a lunatic subsequently. A person who is committing suicide, his will is valid under Sunni law and is not valid in case of Shias.
The Shia law provides extensive powers to a person making a will while the powers under the Sunni law are limited. Thus the powers to make disposition of property are not unlimited.
With regard to the formalities concerning the making of a will, no set formalities are required to be followed but there are two conditions which must be followed i.e. Declaration must be there of the intention to confer an interest and; Disposition with regard to the property takes place after the death of the one making the will.
Wills are of two kinds, oral wills, and written wills. In the case of oral wills, it is important that whatever may be the intention of the testator must be conveyed and proved and in case of the inability to speak the signs and gestures must be able to prove the intention. In the case of written wills, wasiyat nama or a written will may be written or made to be written by the testator and such a will does not require any attestation, registration, or even the signatures of the testator.
For a will to be a valid one it requires that the testator of the legator is competent to make a will and the one who is carrying forward the property of the legator i.e. the legatee or the testatrix is competent to have the property bequeathed to. In addition to these conditions, the property must be a valid one and a Muslim who is bequeathing must well be in his powers to make such a bequeathal.
A Legatee must be competent which is to say that must be capable of holding a property and can even be a non –Muslim, a lunatic, a minor, or even a child in the womb of the mother. If the legatee has caused the death of the testator then he is incompetent to be a legatee. In case specificities are not mentioned with regard to the share in a will, there can even be two or more legatees also.
A property with regard to which the will is made might not be in existence at the time of making the will but it must be there at the time of the death of the testator. Another important condition is that property must be transferrable.
Under the Muslim law, a will that is to come into force at a later date or a contingent bequest both are void. In case some condition is attached to the bequest then the bequest would remain valid but the condition attached becomes void.
With regard to a Muslim person, the will is of divine nature and thus is regulated by the Quran. This institution gives a person a kind of control with regard to how succession in property would take place after his demise and helps a person to acknowledge those who he wants the property to be taken over after his death.
