WILL UNDER MUSLIM LAW
BY NUPUR GARG
A Will or Testament or Wasiyat has been defined as “an instrument by which a person makes disposition of his property to take effect after his death.”
Tyabji defines Will as “conferment of right of property in a specific thing or in a profit or advantage or in a gratuity to take effect on the death of the testator.” The distinguishing feature of a Will is that it becomes effective after the death of the testator and it is revocable. Unlike any other disposition (e.g., sale or gift), the testator exercises full control over the property bequeathed till he is alive: the legatee or beneficiary under the Will cannot interfere in any manner whatsoever in the legator's power of enjoyment of the property including its disposal or transfer.
ESSENTIALS OF VALID WILL
There are certain requisites which make a Will apt and capable of taking effect. Thus, the following discussed requirements must be satisfied:
The legator must be competent to make a Will.
The legatee must be capable of taking such endowment.
The property which is endowed by the legator must be a bequeathable property.
Free consent of the legator and the legatee.
The legator must possess testamentary rights over the property.
FORM OF WASIYAT
A legator can make the wasiyat into both oral or written form because in Muslim law the only intention of making is a matter, not their form;
Oral: An oral promise is sufficient to form a wasiyat but this form of will is proved by anyone is so problematic, only date, time, place and some witnesses address the right of the legatee.
Written: A written document is sufficient not any specified format mention in Muslim law although if a signature is not mentioned in that paper here also the wasiyat is valid.
Gestures: Even the wasiyat by gestures is also valid in Muslim law. This provides for the condition of people who don’t speak by weakness and by some any other reasons.
REVOCATION OF THE WASIYAT
The wasiyat is revoked by legator at any time before his death even they change the conditions, legatee, revoke only some part etc. They have full authority given by Muslim law. The revocation is also in any way expressed or implied.
A Will is a device which confers right to property to legatee in a gratuity manner, postponed till the death of the legator. It provides an opportunity for a legator to correct the law of succession to some extent. This is because it empowers some of the relatives to obtain a share in the property who are legally from excluded from inheritance under Islamic law. The Islamic law of Will allows a person to devolve his property upon a person of his own choice. But simultaneously, it maintains a rational balance between the law of inheritance and devolution of property under a Will.