The
personal law of Mohammedans govern the execution and administration of
Wills. It is also called Wasiyatnama.
Will may be
described as legal declaration of the intentions of a Mohammadian, how his
property has to be dealt with after his death.
Source
The
leading authority on the subject of Mohammedan Wills is Hedaya, which means
guide. The original is in Arabic
language which was translated by four Mohammedan lawyers. Mr. Charles Hamilton translated it from
Persian language to English. The Hedaya
was composed by Shaikh Burhan-ud-din-Ali, who belonged to Hanafi school. Another source is Fatawa Alamgiri which was composed
during the period of Aurangazeb. The
author belongs to the Hanafi school.
Persons capable of making Wills
Any Mohammedan,
who is of sound mind and who is not a minor may bequeath his property by
Will. According to Mohemmedan law, the
age of majority is the age of puberty, which is generally 15 years. Minority completes on completion of 15 years.
But for the purposes other than marriage, dower, divorce the age of attaining
majority is governed by Indian Majority Act 1875. Section 3 of the Act stipulates that a person
shall be deemed to have attained majority when he shall have completed 18 years
of age.
However, before
passing of Indian Majority Act 1875, a Mohammedan who has completed 15 years of
age was competent to make valid bequest of his property.
According to
Shia Law, a Will made by a person who has taken poison or has done some act in
furtherance of suicide is not valid, as he is deemed to be not of sound
mind. In case of Mazhar Husen Vs Bodha
Bibi, the deceased first made the will and thereafter took poison. It was held that the Will was valid, though
he had contemplated suicide at the time of making Will but has done nothing in
furtherance of suicide.
Format of Will
The Will made by
a Mohammedan, may be oral or in writing.
Writing of the Will is not compulsory and there is no particular form
prescribed. Even a verbal declaration is
enough as long as the intention of the testator could be sufficiently
ascertained explicitly.
A Mohammedan
Will though in writing need not be signed, even if signed need not be
attested. However, writing of Will with
due attestation is advisable to avoid disputes.
Oral Will- Proof off
The burden of
establishing a oral Will is always difficult and painstaking. It must be proved beyond doubt establishing
every circumstance of time and place.
Wills made in favour of heirs
Any bequest made
to an heir through Will is not valid unless other heirs agrees to the bequest
after the death of testator. Any single
heir may consent so as to bind his share, which makes the Will valid to that
extent. The subject whether a person is
a legal heir or not has to be determined with regard to the position at the
time of testator’s death and not at the time of execution of Will. However, the bequest made to others who are
not legal heirs does not require the consent of legal heirs. We shall study some examples.
1.
A Mohammedan dies leaving
behind a surviving son, father, and paternal grandfather. Any bequest made to paternal grand father
does not require the consent of father and son, as paternal grand father is not
a legal heir as the father is alive.
2.
A Mohammedan bequeaths certain
properties to his paternal grand father.
He had a son, and father living at the time of execution of Will. But the father dies during the life time
of the testator. In this case the paternal grand father
becomes a legal heir, as the father has died.
The bequest made to the paternal grandfather cannot take place unless
the son of the testator consents.
What is to be bequeathed
The property to
be bequeathed must be in existence at the time of testators death, though it
may not be in existence at the time of execution of Will. Such property must be capable of being
transferred. The corpus may be given to
some person and the benefits arising out of the said property be given to
another. The position of legatee is
similar to that of beneficiary under wakf.
Limitations of testamentary powers
A Mohammedan
cannot dispose off more than one third of his property by Will. This one third will be arrived after
defraying the debts and funeral expenses of testator. Any testamentary disposal of property in
excess of one third after satisfying the debts and funeral expenses needs the
consent of heirs.
Who are eligible for bequest
Any
person, male or female, irrespective of the religion, who is capable of holding
property is eligible for bequest.
The legatee
according to Mohammedan law must be a person competent to receive the
legacy. He must be a person in existence
at the death of the testator.
Any testamentary
disposal to a person who is not in existence is not valid. This applies to unborn person also. However, a bequest to a child in the womb at
the time of the death of the testator and born within six months of the date of
Will is valid. Shia law recognises the
right of person born within 10 months from date of the Will.
A bequeast made
in future is void, likewise a contingent bequest. Any testamentary disposal made with a
condition which derogates from the completeness of transfer is valid and such
condition is void, and the disposal takes place as though no condition is
attached. Alternative bequest is valid.
Lapse of bequest
If the legatee,
that who has to take the property does not survive the testator, the bequest
will lapse and such property becomes a part of the estate of the testator.
As the section
105 of Indian Succession Act espouses the same principle though it is not
applicable to Mahommedan. Under Shia law, the legacy, the subject matter of
Will in case such cases passes on the heirs of the legatee unless it is revoked
by the testator. If the legatee dies
without leaving any heir the legacy would pass on to the heirs of the testator.
Probate and letters of Administration
A Will executed
by a Mohammedan may after due proof, be admitted in evidence though not
probated.
In case of
Mohammedan Will, the estate of the testator vests in the executor, if he
accepts office, from the date of the death of the testator. No letter of administration is necessary to
establish any rights to the property of a Mohammedan who has died intestate
except in case of debts due to the estate of deceased as per section 212(2) of
Indian Succession Act.
The executor of
the Will of Mohammedan need not be a Mohammedan. The powers and duties of the executor of a
Mohammedan will be governed by the provisions of Indian Succession Act as to
the extent they are applicable to Mohammedan.
Revocation
A Will may be
revoked by the testator during his lifetime.
It may be expressly or by implications.
Revocation is express, when testator revokes the bequest in express
terms either oral or written. It is
implied when he does an act from which revocation may be inferred.
A bequest of
piece of land is revoked if the testator builds a house upon it. A bequest of a house is revoked, if the
testator sells or makes a gift of the said house to another.
A Will may also
be revoked by a subsequent Will, by which the testator bequeaths the same
property to another.
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