1. INTRODUCTORY NOTE :

‘Will' is the Anglo-Muslim term for its Arabic equivalent Waysiyai One of the two authorities on the subject of Wills in Islamic Law defines Will as "Conferment of right of property in a specific thing or in a profit or advantage or in a gratuity to take effect on the death of testator". Thus it should be noted that Will or Wasiyat' 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.

The Arabs of Jahaliya had unlimited power of disposing their property by will. In the precept of the Holy Prophet (peace be upon him), wherein he forbade Sa’ad bin Abi Waqas from bequeathing more than one-third of his estate.

1. DEFINITION:

Generally, the terms waysia or waysiyat or bequest or legacy or testamentary disposition or bequeath are used synonymously with a Will. According to Section 2 (h) of Succession Act, I925: 

“Will means a legal declaration of the intention of a testator with respect to his property, which he desires to be carried into effect after his death.”

Under Section 3 (64) of General Clauses Act “Will shall include codicil and very’ writing making a voluntary posthumous disposition of property”

According to Baillie, “to bequeath is, 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.”

According to Durrul Mukhtar: "Will is an assignment of property to take effect after one’s death."

According to Hedaya : "Waysiat 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"

Fatawa Alamgiri defines a Will as the conferment of a right of property in a specific thing or in a profit or advantage, in the manner of a gratuity to take effect on the death of the testator.

Tyabji defines : The legal declaration of the intentions of a Muslim with respect to his property, which he desires to be carried into effect after his death."

1. PARTIES TO A WILL:

(a)      legacy:         The property bequested.

(b)      Testator:      The person making will.

(c)      Legatee:       In whose favor the will is made.

1. OBJECTS OF WILL:

A bequest or legacy may be made for any object but not against Islam. A bequest, made for a purpose which is unlawful according to Islam, is invalid.

According to Baillie, a bequest made for pious purposes fall under three categories:

1. Bequests for Faraiz, i.e. purpose expressly ordained by the Holy Quran such as Haj (Pilgrimage), Zakat (tithe) and expiation.
2. Bequests for Wajibat, i.e. which are themselves necessary and proper. Though not expressly ordained, such as sadqa-e-Fura, charity given on the day of breaking of the fast, and sacrifices, and
3. Bequests for Nawafil, or the bequests of purely voluntary nature, such as bequests for the poor, for building a mosque, a bridge or an inn.

The bequest for faraiz have priority over the other two, and the bequest for wajibat takes precedence over the bequest for Haj, and bequest of Haj has priority over zakat and expiation, and zakat over expiation.

1. WHO CAN MAKE WILL?

The following persons are entitled to make or take a Will:

1. Capacity of a testator:

A testator has the capacity for making a Will if he or she has the following qualifications.

1. Mohammedan:     Testator should be a Mohammedan. Mohammedan Law applies to Mohammedans only. But if a testator who apostates to another religion executes Will, such Will would be valid only if the sect, to which the testator apostatizes, regards it lawful. Similarly, a Will executed .by a female apostate would be valid if it is lawful according to the sect to which she apostatizes.
2. Sex: A testator may be a male or female. Even a pardanashin lady can make a valid Will.
3. Status: The "testator may be married or unmarried.
4. Age of majority: A testator must have attained the age of majority. The age of majority is regulated by Section 3 of the Majority. Act 1875 under which the age of majority is the completion of 18 years in ordinary cases, and completion of 21 years in cases where the guardian of a minor is appointed under the Guardians and Wards Act.
5. Soundness of mind: At the time of making a Will, the testator must be of sound mind. A Will made by an insane person would not become, valid even if the testator recovers after that. A Will made at a time when the testator is of sound mind even though in lucid intervals, the Will 'would be valid. The Will of an insane person cannot be ratified on his regarding sanity or becoming of sound.
6. Ownership of property: A testator can execute a Will for his own property. The ownership of the property must be with the testator at the time of making a Will. But if a testator is in debt to the full amount, of his property, the bequest would not be lawful unless the creditors relinquish their claims,
7. One-third property only: A Mohammedan cannot dispose of more than 1/3 of his property by Will.
8. Free consent: A Will must be made with the free consent of the testator, A Will made by a testator under coercion, undue influence, or fraud is invalid, for the determination of a free consent, the provisions of the Contract Act, Section 18 may be applied. For example, if a testator is said to have made a Will on the point of a dagger, the Will would be invalid.
9. A minor’s Will: A minor cannot make a Will but a Will of a minor can be ratified by him on attaining majority,
10. Shia Law: Under the Shia Law, a Will made by a person who has taken poison or has wounded himself with a view to commit suicide is not valid. But a Will made by a person who subsequently .commits suicide, is valid. The burden of proof that the Will is invalid is upon the person who alleges that the testator has first done some acts towards the commission of suicide before making a Will.

1. FOR WHOM BEQUEST CAN BE MADE:

Bequest can be made for the following persons :

1. Any person : Any person who is capable of holding property, whether male or female, Muslim or non-Muslim, may validly avail the benefit of a bequest,
2. Unborn person: Unborn person cannot #be a legatee. However, if the lactate is in the womb and the birth takes place within six months from the date of making the will, he can be, a lawful legatee. Shia Law recognizes a legatee born within 10 months from the date of will.
3. Heris : Heirs cannot be the legatees, that is, no bequest to heirs, who are entitled to inherit. This rule is relaxed only in cases, where other heirs give their consent (after testator's death, in Hanafi Law : before or after testator's death, in Shia Law). By giving consent, an heir can bind only his own share but not of others.

It is essential that the heir must be in existence at the time of testator's death. Consent may be inferred from the conduct of heirs.

Illustrations

(a)      A Muslim dies leaving him surviving a son, a father, and a paternal grandfather. Here the grandfather is not an "heir", and a bequest to him will be valid without the assent of the son and the father.

(b)                A Muslim dies leaving a son, a widow and a grandson by a predeceased son. The grandson is not an heir and a bequest to him is valid to the extent of one-third without the consent of other heirs, i.e., son and widow:

1. Apostates : Apostates cannot in any case be legatees. A bequest to non-Muslims, however, is valid according to all Schools except Shafi School.
2. Manslayer: Manslayer is one who kills another person, from whom he intends to take a legacy. Hanafi Law prohibits him to take any interest in the bequest. In Ithna Ashari (Shia) Law, however, the more logical view is taken and only intentional homicide leads to exclusion.
3. Institution: Institutions, whether religious or charitable, can "be valid legatees.
4. Joint legatees: A bequest may be made by two or more' persons jointly. In case of joint legatees, if any legatee is incapable of being so from the time of beginning, then the entire legacy will go to the other remaining legatees. But if the legatee becomes disqualified later on then the other remaining legatees would be entitled only to their share in the legacy and the rest would lapse.

A bequest may be made to a special class also. But in such cases the legacy would be divided equally among the legatees irrespective of sex unless a contrary intention clearly shows.

1. Existence of a legatee: At the time of the testator’s death the legatee must be in existence. Similarly, if a bequest is made for, the benefit of an institution, such should also be in existence at the time of the testator’s death. A bequest made to a person who does not survive the testator lapses and forms part of the estate of the deceased