Week 03: Doctrine of Consent, Abatement of Will, Registration and Revocation of wills & Executor

A Muslim will must be construed primarily in accordance with the rules laid down in the Muhammadan Law, bearing in mind the social conditions that prevail, the language employed and the surrounding circumstances. A will speaks as in modern law, from the death of the testator. The Court should as far as possible give effect to the intention of the testator when there is ambiguity in the will. The heirs may also be asked to interpret it. While determining the rules guiding the interpretation of wills, it is essential to remember the differences in the law of wills with regard to Sunni Law and Shia Law. Thus summarizing the differences:

a. In Sunni Law, the bequest to an heir is invalid even to the extent of one-third of the total property of a testator. Whereas in Shia Law, the bequest to heirs is valid up to the extent of onethird of the property.

b. The Consent of the heirs must be given after the death of the testator in Sunni Law but in Shia

Law, the consent of the heirs may be given before of after the death of the testator.

c. The bequest in favour of a child in the womb of his mother is valid provided he or she is born

within six months of making a will in Sunni Law but it is up to ten months under Shia Law.

d. A will by the testator who later commits suicide is valid in Sunni Law. This is invalid in Shia Law unless the will is made before taking any step towards commission of the act of suicide for the will to become valid.

e. The Legacy has to be accepted after the death of the testator in Sunni Law. Legacy under Shia

Law can be accepted before or after the testator’s death.

f. Legatee who causes the death of the testator cannot take his property under Sunni Law. Under

Shia Law, if the death of the testator was caused by the legatee accidently, then the property can

be taken but not otherwise.

g. Under Sunni Law, if the legatee dies before the testator, the legacy lapses. Under Shia Law, if the legatee dies before the testator, the legacy will lapse only when either the legatee dies without leaving an heir or where the testator himself revokes the will. If an heir exists, the legacy passes onto the heir if the will is not revoked.

h. Where the bequest is more than one person in excess of the valid one-third, the rule of rateable

proportion applies in Sunni Law. In Shia Law, it is the rule of Chronological Priority that is

applied to determine the distribution of the one-third property.

Therefore a will in Muslim law is a divine disposition of property. The object of a will is two fold, firstly, it prevents a person from interfering and defeating the claims of his lawful heirs. So the restriction of the legal one-third ensures that at least two-thirds of the property must go by succession. Secondly, by permitting the testator to bequeath one-third of the property, he or she is empowered to settle just claims of even strangers or other relatives who are not heirs.

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