Meaning and Concept of Will (Wasiyat) under Muslim Law
A Will in Muslim law, known as Wasiyat, is a declaration made by a Muslim during his lifetime regarding the distribution of his property after his death. It is an instrument through which a person (testator) expresses his intention to transfer property to another person (legatee or beneficiary) upon his death. The term Wasiyat originates from the Arabic root “wasaa”, meaning “to cause something to reach another.”
A Will is governed by the principles of Muslim Personal Law (Shariat) Application Act, 1937, and its validity and enforcement depend on the testator’s compliance with religious and legal requirements. Unlike other modes of transfer, a Will takes effect after the death of the testator and can be revoked anytime during his lifetime.
In Islam, making a Will is considered an act of charity and a moral duty. The Holy Quran (Surah Al-Baqarah, 2:180) permits Muslims to make bequests, provided they are just and do not harm the legal heirs. However, Muslim law imposes restrictions to maintain fairness among heirs — a Muslim cannot bequeath more than one-third of his estate without the consent of the heirs.
Nature and Importance of a Will (Wasiyat)
A Will in Muslim law serves multiple purposes:
- It allows the testator to dispose of his property in favor of non-heirs, poor relatives, or charitable causes.
- It ensures the proper management of his property after death.
- It fulfills moral and religious duties, such as providing for the needy or supporting religious institutions.
According to classical jurists, a Will has both religious and legal significance. Religiously, it is viewed as a means to attain spiritual reward (sawab), and legally, it enables posthumous distribution of wealth according to the testator’s wishes.
The testator must be a Muslim of sound mind, major age, and must make the Will voluntarily. The subject matter must be lawful and owned by the testator at the time of making the Will.
Requisites of a Valid Will under Muslim Law
For a Will (Wasiyat) to be valid under Muslim law, certain essential conditions must be satisfied:
- Competency of the Testator:
The testator must be a Muslim, of sound mind, and not a minor. He must have ownership of the property he intends to bequeath. - Competency of the Legatee:
The legatee can be any person, including a non-Muslim, but not someone who has killed the testator (murderer cannot inherit). - Free Consent:
The Will must be made voluntarily without coercion, fraud, or undue influence. - Subject Matter:
The property must be transferable, lawful, and in the ownership of the testator at the time of the Will. - Limitation of Bequest:
The bequest cannot exceed one-third of the total estate unless the heirs give their consent after the testator’s death. - Declaration:
There must be a clear declaration by the testator showing his intention to transfer property after death. - Acceptance by Legatee:
The legatee must accept the bequest, either during the lifetime of the testator or after his death.
If all these conditions are fulfilled, the Will is considered valid and enforceable.
Requisites of a Void Will under Muslim Law
A Will (Wasiyat) becomes void when it fails to meet essential legal or religious requirements. The following are the main requisites of a void Will under Muslim law:
- Bequest Beyond One-Third of Property:
If a Muslim bequeaths more than one-third of his property without the consent of heirs, the excess portion is void. Example: If a person has property worth ₹9,00,000 and makes a Will of ₹6,00,000 without heirs’ consent, only ₹3,00,000 will be valid. - Bequest to Heirs Without Consent of Other Heirs:
Under Sunni law, a bequest in favor of a legal heir is void unless the other heirs consent after the death of the testator. - Unlawful or Immoral Purpose:
If the Will is made for illegal or immoral purposes (e.g., for promoting activities prohibited by Islam), it is void. - Bequest to a Murderer:
A murderer (who intentionally kills the testator) is disqualified from receiving property under the Will. - Non-existent or Uncertain Property:
A Will made for property that does not exist or cannot be identified at the time of the testator’s death is void. - Absence of Ownership:
If the testator does not own the property at the time of making the Will, the bequest is invalid.
Thus, a Will becomes void when it violates Islamic limits, lacks consent, or contradicts public policy or Sharia principles.
Distinction between Will (Wasiyat) and Gift (Hiba)
While both Will (Wasiyat) and Gift (Hiba) involve the transfer of property, they differ in several legal aspects.
| Basis | Will (Wasiyat) | Gift (Hiba) |
|---|---|---|
| Meaning | Transfer of property to take effect after the death of the testator. | Transfer of property made during the lifetime of the donor. |
| Time of Operation | Operates after the testator’s death. | Operates immediately upon delivery of possession. |
| Revocability | Revocable at any time during the testator’s lifetime. | Once possession is delivered, it becomes irrevocable. |
| Consent of Heirs | Required if the Will exceeds one-third of property or benefits an heir. | Consent of heirs is not necessary. |
| Ownership | Ownership passes after death. | Ownership transfers instantly after delivery. |
| Consideration | Gratuitous — no consideration. | Also gratuitous but involves delivery and acceptance. |
| Legal Nature | Testamentary disposition (posthumous act). | Inter vivos transfer (between living persons). |
Hence, the Will is a testamentary act, while a Gift is a present transfer of property.
Case Laws Related to Will under Muslim Law
- Abdul Manan Khan v. Mirtuza Khan (1991 AIR 1989 SC) – The Supreme Court held that a Muslim cannot bequeath more than one-third of his property without the consent of his heirs.
- Khatun Bibi v. Rajjab Ali (1935 Calcutta) – A Will in favor of an heir without the consent of other heirs was declared void.
- Gulam Ahmad v. Mst. Fatima Begum (1951 All 464) – The court observed that a Will is void if the property bequeathed was not owned by the testator at the time of execution.
These cases reaffirm the principle that a Wasiyat must strictly comply with Sharia limits and family consent norms.
Mnemonic to Remember – “WILL-GIFT”
W – Within one-third limit
I – In favor of non-heirs (with consent for heirs)
L – Lawful and owned property
L – Legitimate purpose (not immoral)
G – Gift is given in lifetime
I – Immediate transfer of ownership
F – Free from heirs’ consent
T – Transfer takes effect instantly
Mnemonic Tip: “Remember WILL-GIFT — Will within one-third, lawful and legitimate; Gift is given in life with immediate transfer.”
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