This article is written by Mohit Bhardwaj. A 2nd year Law student, currently pursuing BBA-LL.B(Hons.) from Unitedworld School of Law, Karnavati University. In this article, the author discusses the meaning, of wasiyat and its concept under Indian law. To substantiate the concept, reference is made to all the statutes covered by the topic, with relevant illustrations and examples.
Wasiyat has been defined as an instrument by which an individual makes disposition of his property to come into effect after his death.
As per section 2(h) of the Indian succession act, 1925, “Will is a legal declaration of intention of a testator with respect to his property which he desired to be carried out after his death”
Tyabji defines Will as conferment of the right of property in a very specific thing or in an advantage or during a gratuity to come into effect on the death of the testator.
According to Baillie, Will is a device for conferring a right of property in a specific thing, or in a profit or advantage, in the manner of a gratuity, postponed till after the death of the testator. When a Muslim executes a will, then that will is called Wasiyat. Legator/testator is the person who executes the will. A legatee/testatrix is the person in whose favour will is drawn. Let us study the concept of Wasiyat under Muslim law
The distinguishing feature of a Will is that it becomes effective after the death of the testator and it’s revocable.
Unlike any other disposition (e.g. sale or gift), the testator has full control on the property till he’s alive: the legatee or beneficiary under wasiyat cannot interfere in any manner whatsoever in the testator’s power of enjoyment of the property including its disposal or transfer (in that case wasiyat becomes revoked).
Anyone can make a will in favour of anyone irrespective of sex, religion, state of mind and age. In case of a child in mother’s womb, the child is a competent legatee if he is born within 10 months (in case of Shia Law) and 6 months ( in case of Sunni law).
Essentials of a Valid Will under Muslim Law
For a will to be valid and capable of taking effect in law, the following requirements must be satisfied:
- The legator/testator must be competent to make the will
- The legatee/testatrix must be competent to acquire the legacy
- The property must be bequeathable
- Free consent of legator and legatee
- The legator must possess the testamentary right
Who can make a will?
For the purpose of Wasiyat under Muslim Law, any Muslim of sound mind and who has attained Majority can make a will. Interestingly under Shia law, if a person executes a will after attempting to commit suicide is deemed to be void. But under the Sunni law, there is no such ruling.
Who can take under Will?
For the purpose of Wasiyat under Muslim Law, any person may be a competent legatee provided that he is alive at the time of the death of legator. Anyone can make a will in favour of anyone irrespective of sex, religion, state of mind and age. In case of a child in mother’s womb, the child is a competent legatee if he is born within 10 months (in case of Shia Law) and 6 months ( in case of Sunni law).
Legator is disqualified for getting any property under Wasiyat in Muslim Law if he causes or abets the death of legator. However, in the case of Shia law, legator can take his property if he killed legator accidentally or by negligence.
Who is a Legator?
A legator is a person who leaves money or property to another person when they die
Who is a legatee?
A legatee is someone who receives money or property from a person who has died
Limitations on Testamentary Power
1. Restriction with respect to the property to be bequeathed
A person can bequeath only one-third of his total property. If a person wants to give more than one third than the consent of the heir is necessary. If heirs do not consent to this, then only one-third property will be given and rest is distributed among heirs by intestate succession.
2. Restriction with respect to the legatee
In Wasiyat under Muslim Law, the second restriction comes when legatee is a legal heir of legator. In Sunni law, property bequeathed to the legatee, who is also a legal heir, is subject to approval by rest to the heirs irrespective of the part of the estate given. However, in Shia law no such distinction is made as long it is within one-third of total property given.
Revocation of Wasiyat under Muslim Law
The testator can revoke Wasiyat anytime expressly or impliedly. Express revocation is by express terms. It can be both oral by written. Implied revocation is inferred from his actions like destroying bequeathed property or transfer ownership rights.
Muslim law confers on a testator unfettered right to revoke his will. A Muslim testator may revoke, during his lifetime, any Will made by him expressly or impliedly.
Thus, if he sells, makes a gift of the topic of bequest or deals with identical in any other manner like constructing a house on the piece of land bequeathed earlier, would implied revocation.
For example, where the testator gives land to his friend under a Will but a year later gifts identical to his daughter, the bequest in favour of the friend is automatically revoked.
Where a testator makes a Will, and by a subsequent Will gives a similar property to somebody else, the prior bequest is revoked. But a subsequent bequest (though of a similar property) to a different person within the same Will doesn’t operate as a revocation of the prior bequest, and therefore the property will be divided between the 2 legatees in equal shares.
It is not necessary that for revoking an earlier will, another will must be made. A Will are often revoked by an easy and clear declaration thereto effect or by a proper deed of cancellation or revocation of Will.
Wasiyat under Muslim Law is one of the Muslim personal laws with very pious intention. For them, it is a divine institute. Unlike other personal laws, they consider it to correct the irregularities of succession laws. Not only it recognizes other relatives who could not get anything under succession act, but also they protect the right of legal heirs by placing some restrictions on part of the estate which can be bequeathed.