WILL

A will is a declaration made by a person expressing how they wish their property to be disposed off after their death. It is legal deceleration of intention of a muslim with respect to his property which he desires to be carried after his death. 

A will (wasiyat) under Muslim law becomes operative only after the death of the testator. It has no legal effect during the lifetime of the person making the will.Upon the testator's death, the legatee (the person in whose favour the will is made) steps into the shoes of the testator and he becomes the owner of the property to the extent mentioned in the will

Limit on Bequest of Property through Will under Muslim Law:

A Muslim can make a valid will for only up to one-third (⅓) of their total property. Muslim law places a restriction on the extent to which a person can dispose of their property by will.

In other personal laws, the testator is free to will his entire property as per his/her wishes but this is not same in muslim law. Under Muslim law, the legal heirs and their respective shares in the property of a deceased person are fixed by the Qur'an. Therefore, neither the heirs nor their shares can be altered, even by the person who owns the property. Muslim law permits a person to make a will for only up to one-third (⅓) of their property, which can be distributed according to their personal wishes, provided it does not affect the rights of the legal heirs.

Thus, a Muslim can only dispose of one-third of their estate through a will, and the remaining two-thirds must be distributed according to Qur’anic injunctions.

The reasoning given is that a person should not deprive their legal heirs, by giving up the entire property and leaving them destitute.

The origin of the rule limiting bequest to one-third of the estate can be traced to an incident involving Sad ibn Abi Waqqas, as reported. While he was seriously ill, the Prophet Muhammad (peace be upon him) visited him. At the time, Sad had no heirs except a daughter, and he asked the Prophet whether he could bequeath his entire property by will to which the Prophet replied, saying that he could not dispose of the whole nor even two third nor one half, but only one third. 

Any bequest exceeding one-third of the estate is considered invalid to the extent of the excess, unless all legal heirs give their consent after the death of the testator. Under Shia law consent taken before death is also valid. This limitation exists to protect the rights of legal heirs, whose shares are fixed by the Qur'an and cannot be disturbed without their agreement.

ESSENTIALS OF WILL:

1. Testator must be competent to bequest

The testator must be major and of  Sound mind. He must be major as per the Indian majority act., i.e 18 years or 21 years if he is under the supervision of any guardian appointed by. Court. If the will is made during minority then the person has too rectify it after becoming major and it will become effective on the date of rectification.

If the person makes a will when he is of sound mind and later becomes insane and dies as an insane person then the will is not valid. A will made under undue influence or coercion is invalid. 

2. Legatee must be competent to take

It means that the legatee must be capable of holding the property, i.e the person must be in existence at the tie of making the will and capable of holding the property. It can be made to natural as well as artificial person. It can be made in favour of non-muslim as well provided he is not hostile towards the religion of Islam or the person must not have converted himself from Islam to any other religion. 

A will made in favour of the testator’s murderer is considered invalid under Muslim law. Under Sunni law, if the legatee is responsible for the death of the testator—whether the act was intentional or accidental—such a person is disqualified from receiving any benefit under the will. However, Shia law makes a distinction between intentional and unintentional acts. If the death of the testator was caused unintentionally by the legatee, the bequest may still be considered valid. 

3. Subject matter of the will must be valid

Any property whether movable or immovable which is capable of being transferred can be the subject matter of will. Even the usufruct of the property can also be will. The testator must be owner of the property or has authority to make a will over that property. It is not necessary that the subject of the Will must be in existence at the time of making the will, it is sufficient that it exists at the time of the testator’s death.

4. Bequest must be within the limit.

Under muslim law a person can bequest only one-third of his property and the surplus is invalid. If the bequest exceeds one-third, it is only valid if all legal heirs consent after the testator’s death. If there are no legal heir, a person can will his entire property. 

How Will is made?

Under Muslim law, no specific formalities are prescribed for the making of a will. A will may be made either orally or in writing, depending on the circumstances and the intention of the testator. It is not necessary for the will to be registered, nor is it required to be attested by witnesses, although having witnesses may help prove the validity of the will in case of a dispute. In exceptional cases, if the testator is too ill to speak, the will may even be made through gestures, provided the intention to bequeath is clearly understood. 

REVOCATION OF WILL:

A will can be revoked by the testator at any time, either expressly or by implication. Revocation may be express, where the testator clearly declares the cancellation of the will. It may also occur by implication, such as when the testator undertakes an act that alters the subject matter of the will—either by adding to it, disposing of it, or extinguishing his proprietary rights in it. Similarly, if the subject matter of the bequest is dealt with in a manner that denies the right of the beneficiary, the will is considered revoked to that extent.

For example, if the testator sells or transfers the property that was earlier bequeathed, it amounts to revocation by conduct.