Wassiyat (Will) | Family Law - CLAT PG PDF Download

Capacity to Make a Will

• A Muslim can gift his entire property during his lifetime but can only will one-third of his property.
• The capacity to make a will under Muslim Law requires the individual to be of sound mind and of legal age as per the Indian Majority Act.

A Minor's Will

A will made by a minor can be ratified upon reaching the age of majority. However, a will made by someone who is mentally unsound cannot be ratified once they regain sanity.

Insanity and Will Validity

According to Muslim authorities, a will made by a person becomes invalid if that person later becomes insane.

Shia Law on Wills

• Under Shia Law, a will made by a person intending to harm themselves (such as through poisoning or wounding) is considered invalid.
• However, if a person writes a will and then later commits suicide, the will is still valid.

Invalid Wills

• A will made under coercion, undue influence, or fraud is deemed invalid.
• Wills made by Pardanashin (veiled) women are subject to careful scrutiny by the court.

Formalities of a Will

• A will can be oral or written.
• It does not need to be signed by the testator or witnesses, as long as the testator's intention is clear.
• For example, a letter written by a Muslim shortly before his death with instructions for property disposition can be considered a valid will.

Oral Wills

There is no specific form required for an oral will, but proving its validity can be challenging.

Gestural Wills

Under Muslim law, a will can also be made through gestures, provided the meaning is understood.

Subject Matter of a Will

The subject matter of a will can include corporeal or incorporeal, movable or immovable property capable of being transferred. The existence of the subject matter is necessary at the time of the testator's death, not at the time of writing the will.

Bequeathable One-Third

This refers to one-third of the testator's estate after deducting funeral expenses, debts, and other charges.

Bequest Validity

• Except for the Ishan Ashari school, all schools of thought hold that bequests exceeding the bequeathable one-third are invalid unless consented to by the heirs after the testator's death.
• The Ishan Ashari school allows for consent to be given during the testator's lifetime.
• Under valid custom, a Muslim can dispose of his entire property by will.
• If a testator has no heirs, he may dispose of his entire property by will, and the state cannot interfere.
• The consent of heirs validates a will for more than one-third, as this rule is for the benefit of heirs, who can choose to forgo their benefit.

Example of Implied Consent

If a testator bequeaths his entire property to a stranger (X) in a will attested by his two sons (A & B), who are the only heirs, and after the testator's death, X enters into possession of the property and collects rents with full knowledge of A & B, these facts indicate implied consent on the part of A & B. Once given, consent cannot be rescinded.

Distribution When Sole Heir is Spouse

• If a testator dies leaving only a spouse as the sole heir and no blood relatives, the distribution differs based on gender: if the testator is female, she can bequeath 2/3 of the estate; if male, he can bequeath 5/6 of the estate, with the remainder going to the state by escheat.

Special Marriage Act and Will Dispositions

• If a Muslim is married or registered under the Special Marriage Act of 1954, he is governed by the Indian Succession Act of 1925 and can bequeath his entire property by will.

Invalid Bequests

• Bequests in the future and contingent bequests are void.
• Bequests for pious purposes are valid, and a Wakf can be created through a will, known as "Testamentary Wakf."

Hanafi Law: Abatement of Bequests

When a testator makes bequests that violate the 1/3 rule and the heirs refuse to give consent, the bequests under Hanafi law abate ratably.

Example

• A dies leaving a will directing Rs. 100 to his relatives, Rs. 100 to Fakirs, and Rs. 40 for the expiration of prayers.
• His estate is worth Rs. 216, but the total legacies amount to Rs. 240.
• The bequeathable 1/3 is only Rs. 72.
• Therefore, the legacies must abate in proportion of Rs. 72 to Rs. 240, resulting in Rs. 30, Rs. 30, and Rs. 12 for each bequest.

Shia Law: Priority of Bequests

Under Shia law, a bequest made earlier takes precedence over later bequests unless the latter is intended to revoke the former.

Examples

• Example 1: If a Shia testator bequeaths 1/3 of his estate to A, 1/4 to B, and 1/2 to C, and the heirs do not consent, A will receive 1/3, while B and C will receive nothing.
• Example 2: If a testator gives 1/12 to P, 1/4 to Q, and 1/6 to R, P will receive 1/12 and Q will receive 1/4, completing the 1/3 requirement. R will not receive anything. However, if the same 1/3 is successively bequeathed to A, B, and C, with the last bequest revoking the first two, C will receive 1/3, and A and B will receive nothing.

Who Can Be a Legatee?

A bequest to a person who is not alive at the time of the testator's death is considered void. However, a bequest to a child in the womb is valid as long as the child is born within six months of the testator's death.

Legacies to Individuals

• Legacies can be made to individuals regardless of their gender, age, or religion.
• Legacies for charitable or religious purposes are also permissible, provided they do not contravene Islamic principles.

Validity of Bequests

• A bequest to a person who is deceased at the time of the testator's death is considered void.
• However, a bequest to an unborn child is valid as long as the child is born within six months of the testator's death.

Lapse of Legacies

• If a legacy is granted to a person who does not survive the testator, it lapses.
• In such cases, the legacy becomes part of the deceased's estate.

Bequests for Heirs

Consent for Bequest

• Hanafi Law: No bequest can be made without the consent of all heirs after the testator's death.
• Shia Law: Consent is not required at any time for making a bequest.

Examples of Bequests

• Example P: If a testator bequeaths 1/3 of his estate to his grandfather and dies, leaving behind his father, grandfather, and son, the father and son become sharers. The grandfather takes 1/3 without the consent of the son and father.
• Example P: If a testator bequeaths 1/3 to his grandfather after his death and is survived by both his grandfather and son, the son, being a sharer, must consent to the bequest.
• Example P: If a testator bequeaths his entire property to only 2 out of his 5 sons and dies, leaving behind all five sons, the bequest is invalid.

Consent of Heirs

• Consent from heirs can be express or implied, but silence does not constitute consent.

Legacy of Murderer

• A murderer is excluded from receiving any legacy.

Construction of Will

A) Construction of a will is based on:
i) Rules of construction as per Muslim law.
ii) Language used by the testator.
iii) Surrounding circumstances at the time.

B) General Rule:
i) A will takes effect from the death of the testator.
ii) The court tries to honor the testator's intentions.
iii) If the testator's language is ambiguous and cannot be understood with the usual meanings of the words, the heirs can interpret it in any way they wish.

For example, if a testator says, "I leave a garment/book to Q," the heirs can decide what type of garment or book to give.
If a testator bequeaths something not in his possession at the time of death, the legacy fails unless the intention was to bequeath the value of the indicated article.

Revocation of the Will

• A testator can revoke a will or any part of it at any time, either expressly or by implication. Additions to the will are also allowed.
• Revocation Methods:
• i)Express revocation:
  • By erasing or burning the will.
  • If the testator bequeaths property to one person and later bequeaths the same property to another in a subsequent will, the first bequest is revoked.
  • If the same property is bequeathed to different people in different parts of the same will, both legatees share equally.
• ii)Implied revocation:
  • An act inconsistent with a bequest will revoke the will.
  • For example, bequeathing a plot of land and then constructing a building on it revokes the bequest.