ISLAMIC LAW OF WILL LESSON 2

  1. FORMALITIES OF WILL:

 

Under Mohammedan Law, though there are no specific formalities for making a valid Will the following formalities must be complied with:

  1. Oral Will: A Will may be made orally and no form of. verbal declaration is required. No writing is required. The burden of proving an oral Will is very heavy and an oral Will must be proved with utmost precision and with every circumstances of time and place.

The only thing required is that the intention of the testator should be clear and unequivocal.

  1. Will in Writing: No writing is required for the validity of a Will. But when Will is in writing no specific form is required. It does not require signature of the testator or attestation by witnesses. Intention of the testator should be clear and unequivocal.
  2. Will made by signs and Explanation:

Under Mohammedan Law, a Will may be made, by signs or gestures.

The only thing required for a person making Will by signs, is that he should be unable to speak and write. For example a dumb person may make a Will.

  1. A clear and unequivocal  intention: In every case, whether the will is oral or in writing or made by signs, the intention of the testator to make a Will must be clear and unequivocal,
  2. Acceptance by the legatee: The legatee’s acceptance whether implied or express, is required for the validity of a will. Such acceptance must be made after the death of the testator. Even though a legatee has rejected a Will during his life-time he may accept it after - the death of the testator. A presumption of acceptance may be made in the following cases;
  3. A bequest to a class: When a bequest is made in favour of a-particular class, such as the poor, generally acceptance is not required, a Will becomes irrevocable by the death of the testator.
  4. A child in Womb: When Will is made in favour of child in womb, who would be born within 6 months of the testator’s death, then there is no need of acceptance by the child, but acceptance will be presumed unless it would cause injury to the legatee. Similarly, if the legatee survives the testator and dies without assigning to the Will, the assent is presumed.

 

  1. Limitation on testamentary powers :

 

A Muslim cannot by will dispose of more than a third of the surplus of his estate alter payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect unless the heirs consent thereto, after the death of the testator. The limitations imposed by the Islamic Law on the testamentary powers of a Muslim are two fold:

(1)      As to the person to whom the property is bequeathed.

(2)      As to the property which is the subject-matter of the bequest.

 

  1. Limitations as to persons :

 

A bequest to an heir is not valid unless the other heir consents to the bequest after the death of the testator. Such consent under Sunni Law must be given after the testator's death, and under the Shia Law a testator may leave a legacy to an heir so long as it does not exceed l /3rd 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 either before or after the death of the testator. The -question as to who are the heirs has reference to the time of the testator's death, and not to the time of the execution of the Will.

  1. Limitation as to property:

 Where bequest is sought to be made to non-heirs, or even heirs, there is another limitation imposed. This limitation is that a Muslim cannot by Will dispose of more than one-third of his estate which is left after payment of his funeral expenses and debts. Bequests in excess of one-third do not take effect unless the heirs have given their consent to it after the death of the testator. Under Shia Law such consent may be given either before or after the death of the testator.