WILL
1. Introduction:
Will is a conferment of right which is to effect after the death of the testator. a Muslim may make his will either orally or in writing and no formalities are required. a Muslim cannot by will dispose of more than one-third of the surplus of his estate after payment of his funeral expenses and debts. a bequest in the future as well as a contingent bequest is void under Islamic law.
2. Meaning:
The term will be forming the Arabic word wasiyyat which means endowment with property of anything after death.
Baillie:
A will is a conferment of rights and property in a specific thing or a profit or an advantage or in gravity to take effect on the death of the testator.
3. Definition of will:
Fatawa alamgiri:
Will is a legal declaration of the intention of a testator with respect to his property which desires to be carried into effect his death.
4. Who can make will:
Every Muslim of sound mind may dispose of property by will.
5. Qualification of testator:
Testator must be
- Major
- Sound mind
- Possessed with the ownership of property.
6. Persons who cannot make will:
The following persons cannot make a will.
- Minor
- Lunatic
- Unsound mind
7. Persons in whose favor will be made:
A will can be lawfully made in favor of the following:
- An individual.
- An institution.
- A non-Muslim.
- A minor
- An insane.
8. Conditions of a valid will:
The following are the conditions of a valid will:
- Intention to give.
- Disposition to take effect after the death of the testator.
- Should not affect the legal shares of heirs.
- Should not be more than 1/3 of the property.
- Strange.
9. Form of will:
A will may be in words or shown by the conduct of the co-heirs. so, it may be:
- Written
- Oral/ verbal
10. Attestation:
Will should be attested by two or more witnesses.
11. Cases where will is not valid:
In the following cases will is not valid
- A will in favor of a legal heir.
- Contingent will
- Will to unborn person.
Exception:
A will may be made to a child's womb, provided it is born within six months from the date of the will.
4. A will in the future.
5. A will to a person who causes the death of the testator.
12. Essential conditions for execution of will:
For the execution of a valid will following are two conditions.
- Payment of the funeral expenses out of the property of the deceased.
- Payment of any debt out of the property of the deceased.
13. Nature of appointment of testator:
Appointment of the testator may be for.
- General purpose. Or
- Special purpose.
14. Parties to a will:
The following are parties to a will:
Legacy:
The property be quested.
Testator:
The person who makes a will.
Legatee:
In whose favor the will is made.
15. Essentials:
The following are the essentials to a valid under Islamic law:
- Declaration by the testator.
- The testator must be competent to declare.
- The subject of the will must be valid.
- It must be within the limit imposed on the testator.
- The legatee must be competent to take the property.
- Offer by the testator.
- Acceptance by legatee.
16. Subject of will.
The subjects of a will are as under:
- Property being transferred.
- Property must be in existence.
17. Limitations:
I. 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.
II. As to property:
A Muslim cannot be will dispose of more than one-third of his estate which is left after payment of his funeral expenses and debts.
Exceptions:
The following are exceptions to the limitation.
- A bequest of more than one-third to a non-heir or up to one-third to an heir is valid if consented by heirs of the deceased.
- If the testator leaves no heir.
18. Revocation of will:
A will is revocable. it can be revoked by the testator at any time before his death.
(i) Mode of revocation:
Following are the modes of revocation of a will.
(a) Express:
The testator may revoke the will in express terms either orally or in writing.
(b) Implied:
Implied is that revocations where the testator does an act from which revocation may be inferred.
19. Conclusion:
To conclude I can say that a will is the disposition of property which is to take effect at the time of the person making it. it operates from the time before his death. the subject of will may be any property capable of being transferred. a will is revocable in its nature.