Cameron Miranda
Under Muslim law, a will is known as a 'Wasiyat' and the individual executing the will is referred to as the 'legator' or 'testator'. For a will to be valid, the legator must be a Muslim, be of sound mind, and have attained the age of majority (typically considered 15 or 18 years old). The will takes effect after the death of the testator and allows for the disposition of up to one-third of the testator's property, with the remaining two-thirds reserved for legal heirs. These restrictions aim to balance the testator's freedom with the rights of the heirs.
| Characteristics | Values |
|---|---|
| Religion | Muslim |
| Age | Above 18 years (or 21 years if under supervision of Courts of Wards) |
| Mental capacity | Sound mind |
| Property | Up to one-third of total property |
| Registration | Not mandatory, but provides added legal protection |
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What You'll Learn
Only a Muslim person can make a will under Muslim law
Under Muslim law, a will is known as a 'Wasiyat' and the individual executing the will is referred to as the 'legator' or 'testator'. The laws related to wills under Muslim law specify that only a Muslim person is eligible to make a Wasiyat. However, it is important to note that the legatee, or the beneficiary named in the will, may be a non-Muslim. Any person capable of holding property, regardless of their religion, age, or mental capacity, may be the legatee under a will.
To make a valid will under Muslim law, the testator must fulfil certain conditions. Firstly, they must have attained the age of majority, typically considered to be 18 years or 21 years if under the supervision of a court. Additionally, the testator must have a sound mind and a 'disposing mind', meaning they must be capable of understanding the legal consequences of their actions at the time of executing the will. It is important to note that a will executed in apprehension of death is valid, but under Shia law, a will executed after a suicide attempt is void.
In terms of testamentary powers, a Muslim testator has certain restrictions on the disposition of their property. They can only bequeath up to one-third of their bequeathable property, with the remaining two-thirds reserved for legal heirs. This one-third limit is calculated after deducting expenses such as debts and funeral costs. If the Muslim testator does not have any legal heirs, they may bequeath their property to anyone and in any amount without being restricted to the one-third limit.
The concept of a will under Islamic law is a balance between two principles. On the one hand, the Prophet's view is that a person's property should be distributed to their heirs after their death, and any interference with this rule is unacceptable. On the other hand, it is the moral duty of every Muslim to make appropriate arrangements for their property after death, maintaining a balance between charity and responsibility towards their family.
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The will-maker must be of sound mind and have attained puberty
Under Muslim law, a will-maker or testator must be of sound mind and have attained puberty. This means that the will-maker must be capable of knowing the legal consequences of their actions, both at the time of making the will and in the future. The will-maker must also understand the nature and consequences of their acts and have the intention of bequeathing their property.
According to the Indian Majority Act of 1875, the age of majority is typically attained at 18 years, or 21 years if the individual is under the supervision of Courts of Wards. Therefore, the testator must be at least 18 or 21 years old, depending on their specific circumstances, at the time of executing the will.
It is important to note that a will made by a person of sound mind can become invalid if the testator subsequently becomes permanently unsound of mind. For example, if a testator bequests their property and later becomes a lunatic, as referred to by a legal scholar in Ameer Ali's 'Book of Mohammedan Law', the bequest may become void. However, if the period of unsoundness is temporary, such as six months, the bequest remains valid.
In the case of a minor, they are incompetent to make a will, and such a will would be considered void. However, upon attaining majority, the minor can subsequently validate their will by ratification.
Overall, the requirements for a valid will-maker under Muslim law emphasize the importance of the individual's sound mind and maturity, ensuring they fully comprehend the legal and moral implications of their decisions regarding their property.
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The will must be made voluntarily
Under Muslim law, a will is a voluntary transfer of ownership, effected through a testamentary declaration, which comes into effect after the death of the testator. The testator is the maker of the will and must be a Muslim at the time of making or executing the will.
The testator must have attained the age of majority while making a will. The age of majority is governed by the Indian Majority Act, 1875, under which a person attains majority on completion of 18 years (or 21 years if under the supervision of the Courts of Wards). Thus, the testator must be 18 or 21 years old at the time of executing the will.
At the time of execution of the will, the testator must be of sound mind. Under Muslim law, the legator must have a perfectly 'disposing mind', meaning they must be capable of knowing the legal consequences of their activities, not only at the time of the declaration but also after that. A will that is executed in apprehension of death is valid, but under Shia law, if a person executes a will after attempting suicide, the will is void.
A will made by a person of sound mind becomes invalid if the testator subsequently becomes permanently unsound of mind. In the case of unsoundness of mind for a period of six months, the bequest remains valid. A minor is incompetent to make a will, but a will made by a minor may be subsequently validated by their ratification upon attaining majority.
The legatee, or the person in whose favour the property is bequeathed, may be a non-Muslim. Any person capable of holding property may be a legatee, including a Muslim, non-Muslim, insane person, minor, or a child in its mother's womb. However, the legatee must be in existence at the time of making the will, so a bequest to an unborn person is void.
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The will-maker must have the mental capacity and legal competence to create a will
Under Muslim law, a will-maker or testator must be of sound mind and have legal competence to create a will. This means that the will-maker must be free from mental disorders that could influence their decisions and have the mental capacity to understand the legal consequences of their actions when creating the will. The will-maker must also be at least 18 years old, or 21 if under the supervision of Courts of Wards, as governed by the Indian Majority Act, 1875.
The will-maker's mental capacity is assessed at the moment of creating the will, and they must demonstrate an understanding of the will's purpose, awareness of their assets, recognition of family members, and rational distribution plans. The will-maker must have a 'disposing mind', meaning they must be capable of knowing the legal consequences of their actions not only at the time of making the will but also after that.
People with fluctuating mental capacities can still execute legally valid wills during periods of lucidity. The law recognizes that capacity is not always constant, and what matters most is the will-maker's mental state at two critical moments: when giving instructions for the will and when signing it. If a will is contested on capacity grounds, courts will examine evidence of the will-maker's mental state before, during, and after the will-making process to determine if they possessed the required sound mind, memory, and understanding.
In addition to the will-maker's competence, the will must also meet other requirements to be considered valid under Muslim law. These include the capability of the legatee or beneficiary, the bequeathable property, the consent of both the will-maker and the legatee, and the testamentary rights of the will-maker.
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The will can be revoked at any time
Under Muslim law, a will or wasiyat is defined as an instrument by which a person makes a disposition of their property to take effect after their death. The testator must be of sound mind and have attained the age of majority (above 18 years) to make a will.
Revocation can also occur if the will is burned or torn by the maker, indicating their intention to revoke it. However, a mere denial of the will is not sufficient for revocation; it must be followed by an action that demonstrates revocation. Additionally, if a bequeathed property is sold by the testator and then re-purchased as a gift to the legatee, it is considered a revocation due to the waiver of ownership.
It is important to note that under Shia law, if a person executes a will after attempting suicide, the will is void. Similarly, under Sunni law, if the legatee dies before the will can operate, the bequest lapses, and the property remains with the testator, who can revoke the will before their death.
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Frequently asked questions
Any Muslim person above the age of majority (typically considered to be 15 or 18 years old) of sound mind can make a will.
A will under Muslim law is known as a 'Wasiyat' and is deeply rooted in Muslim personal law, drawing its principles from Shariah (Islamic law). One of the key features of a Wasiyat is that it becomes effective after the death of the testator and it is revocable. Another key feature is that the testator may only will away one-third of their property after settling debts and other obligations.
For a will to be valid under Muslim law, the following requirements need to be fulfilled:
- The legator must have the mental capacity and legal competence to create a will.
- The legatee must be legally eligible to receive the inheritance.
- The property being gifted must be capable of being legally bequeathed according to Islamic law.
