Meaning and definition of Will

The Arabic synonym of will is Wasiyat. A will is an instrument by which a person makes the disposition of his property to take effect after his death. A document embodying the will is called wasiyatnama. Many jurists definitions of willhave given several

According to Durrul Mukhtar- Will is an assignment of property to take effect after ones death.

According to Tyabji- The legal declaration of the intentions of a Muslim with respect to his property, which he desires to be carried into effect after his death. According to sec. 2 of the Succession Act 1925-'Will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.'

Form of Will

Written form and registration aren't necessary for the validity of a Will. In Muslim law a will may be made either orally or in writing. However to have proper evidence, the Will should be made in writing. If the Will is in writing it need not be signed and if signed, it need not be attested. The main thing is that the intention of the testator must be clear.

Who can make a will?A

Muslim who is of sound mind, solvent and is major can make a will. Under Muslim Law majority is presumed to be attained at puberty, which is supposed to be reached at 15 years of age. But Majority Act 1875 recognizes only the age of 18 as majority not 15 for the purpose of will.

A

minor may make a will but its validity would be postponed to the event when, after attaining majority, he rectifies it. Such a will is very weak as it may be attacked on the grounds that it has been made under force, coercion or undue influence.

To whom a Will can be made?i. Any person who is capable of holding property. ii. Unborn person can not be a legatee. However if the legatee is in the womb and the birth takes place within six months from the date of making the will, he can be a lawful legatee.

iii. Heirs can not be the legatees. This rule is relaxed only in cases, where other heirs give their consent. By giving consent, an heir can bind his own share but not of others. It is essential that the heir must be in existence at the time of testator's death. iv. Will can be made for religious or charitable purpose

What can be bequeathed?The subject matter of will may beThe corpse or body of a testator, which must be in existence at the time of the testator's death, and may not be in existent at the time of making the will. The usufruct of an existing property for a limited time or for life time of the legatee. It is permissible that the corpus may be given to one person and the usufruct of the same property to another.

The vested remainder- Suppose A bequeaths the usufruct of a property to B, for B's lifetime, and the whole of property to C. C has vested remainder in the property.

How much can be bequeathed?

No Muslim can bequeath more than one-third of his property. The one-third is calculated after deducting any debts, and funeral expenses of the testator. If the will exceeds the bequeathable onethird, it doesn't take effect without the consent of the heirs. By giving consent, an heir can bind his own share but not of others. But if the heirs do not give consent, in Hanafi law the bequests shall be rateably reduced or abated. The principle is called Abatement of legacies. The Shia law however does not recognize it.

If wills for pious purposes exceed the legal limit of one third, the property will be determined in the following order:

bequest for farz i.e., those duties

which are made obligatory by the Holly Quran, e.g., performance of haz; ii. bequest for wajibat i.e., those acts that are recommended by the Quran, but are not obligatory, e.g. charity on breaking the day of fast;

iii. bequest for nawfil i.e., voluntary but pious acts which are not even recommended, e.g., building a bridge or mosque. Bequest of the first class takes precedence over that of second; and bequest of the second class takes precedence over that of the third.

Reasons for limiting: the testamentary powerThere are two limits on a Muslim's power to bequeath for a person- he can't bequeath to an heir, and As to property- he can't bequeath more than one-third of his property. The reason for this is to prevent a testator from depriving the heir in getting property according to law.

Wills during maraz-ul-mautA gift made in maraz-ul-maut takes effect as a will. Under Hanafi law, it takes effect to the extent of bequethable third, if it is not in favour of the heirs, and the possession has been taken by the donees. Under Shia law, it takes effect to the extent of 1/3, even if it is in favour of heirs. But possession is to be transferred.

According to Fyzee and Mulla, to constitute maraz-ul-maut there must be (1) proximate danger of death, (2) apprehension in the mind of the sick and (3) some external indicia, like inability to attend to routine work etc. But nothing is conclusive, it is a question of fact. A gift by way of will during marazul-maut must comply with two conditions i. the limit of one-third and ii. If made to an heir, the consent of other heirs is required.

Revocation of a willThe testator may revoke a will either expressly or impliedly or by a subsequent will.

Express revocation- An express revocation is one where the testator revokes the bequest in express terms either orally or in writing. Implied revocation- Implied revocation is one where the testator does an act from which revocation is inferred. For example, bequest of a piece of land is revoked, if the testator subsequently builds a house upon it.

Subsequent Will- Where a testator makes a will, and by a subsequent will gives the same property to someone else, the prior bequest is revoked. But a subsequent bequest though it be of the same property, to another person in the same will doesn't operate as revocation of the prior bequest, and the property will be divided between the two legatees in equal shares.

Differences between gift and will

Gift Existence of property at the time of time of gift is must. Transfer of possession at the time of gift is must. Transfer becomes effective instantly. Doctrine of mushaa applies.

Will - Not essential at the time of will, but must at the time of death of the testator. - Not done, property devolves upon the legatee after death of testator. - Becomes effective after the death of the testator. - Does not apply.

Differences between gift and will

No limit as to quantum or beneficiary No revocation of a completed gift.

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Two limits- not more than 1/3 and not to heir (subject to consent). May be revoked before the death of the testator.