Will

Meaning and definition of Will
 The Arabic synonym of will is Wasiyat. A

will is an instrument by which a person
makes the disposition of his property to
take effect after his death. A document
embodying the will is called wasiyat-
nama.
Many jurists have given several

definitions of will-
 According to Durrul Mukhtar- “Will is an
assignment of property to take effect
after one’s death.”
According to Tyabji- “The legal declaration of
the intentions of a Muslim with respect to his
property, which he desires to be carried into
effect after his death.”
According to sec. 2 of the Succession Act

1925-'Will is the legal declaration of the
intention of a testator with respect to his
property which he desires to be carried into
effect after his death.'
Form of Will
 Written form and registration aren't

necessary for the validity of a Will. In
Muslim law a will may be made either
orally or in writing.
 However to have proper evidence, the

Will should be made in writing. If the Will
is in writing it need not be signed and if
signed, it need not be attested. The main
thing is that the intention of the testator
must be clear.
Who can make a will?
A Muslim who is of sound mind,
solvent and is major can make a
will. Under Muslim Law majority is
presumed to be attained at puberty,
which is supposed to be reached at
15 years of age. But Majority Act
1875 recognizes only the age of 18
as majority not 15 for the purpose
of will.
A minor may make a will but its validity
would be postponed to the event when, after
attaining majority, he rectifies it. Such a will is
very weak as it may be attacked on the
grounds that it has been made under force,
coercion or undue influence.
To whom a Will can be
made?
i. Any person who is capable of holding
property.
ii. Unborn person can not be a legatee.
However if the legatee is in the womb and
the birth takes place within six months
from the date of making the will, he can be
a lawful legatee.
iii. Heirs can not be the legatees. This
rule is relaxed only in cases, where
other heirs give their consent. By
giving consent, an heir can bind his
own share but not of others. It is
essential that the heir must be in
existence at the time of testator's
death.
iv. Will can be made for religious or
charitable purpose
What can be bequeathed?
The subject matter of will may be-
The corpse or body of a testator,

which must be in existence at the
time of the testator's death, and may
not be in existent at the time of
making the will.
The usufruct of an existing property

for a limited time or for life time of
the legatee. It is permissible that the
corpus may be given to one person
and the usufruct of the same property
to another.
The vested remainder- Suppose A
bequeaths the usufruct of a property to
B, for B's lifetime, and the whole of
property to C. C has vested remainder
in the property.
How much can be bequeathed?
 No Muslim can bequeath more than one-third
of his property. The one-third is calculated
after deducting any debts, and funeral
expenses of the testator.
 If the will exceeds the bequeathable one-
third, it doesn't take effect without the
consent of the heirs. By giving consent, an
heir can bind his own share but not of others.
But if the heirs do not give consent, in Hanafi
law the bequests shall be rateably reduced or
abated. The principle is called Abatement of
legacies. The Shia law however does not
recognize it.
If wills for pious purposes exceed the
legal limit of one third, the property will
be determined in the following order:
 bequest for farz i.e., those duties

which are made obligatory by the Holly
Quran, e.g., performance of haz;
ii. bequest for wajibat i.e., those acts that

are recommended by the Quran, but are
not obligatory, e.g. charity on breaking
the day of fast;
iii. bequest for nawfil i.e., voluntary but
pious acts which are not even
recommended, e.g., building a bridge or
mosque.
Bequest of the first class takes
precedence over that of second; and
bequest of the second class takes
precedence over that of the third.
Reasons for limiting: the
testamentary power
There are two limits on a Muslim's power
to bequeath –
 for a person- he can't bequeath to an
heir, and
 As to property- he can't bequeath more
than one-third of his property. The
reason for this is to prevent a testator
from depriving the heir in getting
property according to law.
Wills during maraz-ul-maut
A gift made in maraz-ul-maut
takes effect as a will. Under
Hanafi law, it takes effect to the
extent of bequethable third, if it
is not in favour of the heirs, and
the possession has been taken by
the donees. Under Shia law, it
takes effect to the extent of 1/3,
even if it is in favour of heirs. But
possession is to be transferred.
According to Fyzee and Mulla, to
constitute maraz-ul-maut there
must be (1) proximate danger of
death, (2) apprehension in the
mind of the sick and (3) some
external indicia, like inability to
attend to routine work etc. But
nothing is conclusive, it is a
question of fact.
A gift by way of will during maraz-
ul-maut must comply with two
conditions – i. the limit of one-third
and ii. If made to an heir, the
consent of other heirs is required.
Revocation of a will
The testator may revoke a will either
expressly or impliedly or by a subsequent
will.
 Express revocation- An express revocation
is one where the testator revokes the
bequest in express terms either orally or in
writing.
 Implied revocation- Implied revocation is
one where the testator does an act from
which revocation is inferred. For example,
bequest of a piece of land is revoked, if the
testator subsequently builds a house upon
it.
 Subsequent Will- Where a testator
makes a will, and by a subsequent
will gives the same property to
someone else, the prior bequest is
revoked. But a subsequent bequest
though it be of the same property,
to another person in the same will
doesn't operate as revocation of the
prior bequest, and the property will
be divided between the two legatees
in equal shares.
Differences between gift and will
Gift Will
 Existence of - Not essential at the time of
property at the time will, but must at the time of
of time of gift is death of the testator.
must. - Not done, property
 Transfer of devolves upon the legatee
possession at the after death of testator.
time of gift is must. - Becomes effective after
 Transfer becomes the death of the testator.
effective instantly. - Does not apply.
 Doctrine of mushaa
applies.
Differences between gift and will
 No limit as to - Two limits- not more

quantum or than 1/3 and not to
beneficiary heir (subject to
consent).
 No revocation of a  May be revoked
completed gift. before the death of
the testator.

Will

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Meaning and definition of Will

 The Arabic synonym of will is Wasiyat. A

Many jurists have given several

According to sec. 2 of the Succession Act

 Written form and registration aren't

 However to have proper evidence, the

The corpse or body of a testator,

The usufruct of an existing property

 bequest for farz i.e., those duties

ii. bequest for wajibat i.e., those acts that

 No limit as to - Two limits- not more

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