Concept Of Wasiyat Under Muslim Law:
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.
Objectives of Wasiyat under Muslim Law
Wasiyat under Muslim Law is a divine institute. It provides testator means to correct law of succession and to give a part of the property to the relatives who are left out of the law of succession. It also provides a tool to recognize the services rendered to him by a stranger, or the devotion to him in his last moments.
Essentials of a valid will
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 take 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 death of legator. However, in case of Shia law, legator can take his property if he killed legator accidentally or by negligence.
Limitation on testamentary power
1. Restriction with respect to 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 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.
Conclusion
Wasiyat under Muslim Law is one of the Muslim personal laws with very pious intention. For them, it is 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.
Written By Ankit Raturi, University School of Law and Legal Studies
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