A wassiyat or will under Muslim law is a divine institution, since its exercise is regulated by Koran. Will is the translation of Latin word “voluntas”, which was a term used in the text of the Roman law to express the intention of a testator. Under Muslim law, every Muslim has the testamentary power of disposing of his property. But his testamentary power is limited to the disposal of only one-third of his property.
A wassiyat offers to the testator the means of correcting to a certain extent the law of succession, and of enabling some of those relatives who are excluded from inheritance to obtain a share in his goods, and/or recognizing the services rendered to him by a stranger, or the devotion to him in his last moments.” This seems to be the reason why the word “wassaya” or “wassiyat” has two meanings; it means a will and it also signifies a moral exhortation. The word wassiyat also means a specific legacy or the capacity of the executor.
Capacity to make a Wassiyat or Will,
Every Muslim, who is of sound mind and of the age of majority, has the capacity to make a will. Under the Shia law, a will made by a person, who has taken poison, or, has wounded himself with a view to committing suicide, is invalid. But a will made by a person, who subsequently commits suicide is valid.
A will made by a person under coercion, undue influence, or fraud is invalid. Similarly, the court will scrutinize the will of a pardanaseen lady very carefully before admitting it.
Formalities of a Wassiyat or Will
Muslim law requires no specific formalities for the execution of a will. A will may be oral or in writing. When the will is in writing, no specific form is laid down. It may not even be signed by the testator or attested by the witnesses. [Ramjilal vs. Ahmed, 1952 MB 56] However, it is necessary that the intention of the testator should be clear and unequivocal. In Mazhar vs. Bodha, 21 All 91 a letter was written by a Muslim shortly before his death, containing directions for the disposition of his property, was accepted to constitute a valid will.
When a will is oral, no form of declaration is necessary. Obviously, the burden of establishing an oral will is very heavy, and an oral will must be proved with utmost precision and with every circumstance of time and place. [Venkat vs. Namdeo, (1931) 58 IA 362]
Subject-Matter of Wassiyat or Will
Any type of property, immovable or movable, corporeal or incorporeal, which is capable of being transferred, may form the subject-matter of a bequest. Under Muslim law, it is possible that a testator may give to one person and the usufruct to another.
Construction of Wassiyat or Will
The general rule governing the construction of the will is that – a Muslim will is to be construed in accordance with the rules of construction of the will laid down in Muslim law, the language used by the testator and the surrounding circumstances. It is also a general rule of construction of wills that unless a different intention appears, a will speaks from the death of the testator, and the bequests, contained in it take effect accordingly. It is a universal rule of construction of wills that the courts try to give effect, as far as possible, to the intention of the testator.
Revocation of Wassiyat or Will
Under Muslim law, a testator may revoke his will or any part of it anytime, either expressly or by implication.
If a testator makes a bequest of some property to a person, and by the subsequent will, he bequests the same property to another person, the first bequest is revoked. A will may be expressly revoked by tearing it off, or by burning it.
Any act inconsistent with the bequest will go to revoke the will. For instance, bequest of a plot of land is revoked when the testator builds a house on it; or bequest of a house is revoked when the testator sells or makes a gift of it to another.
Author – Mayank Shekhar
- Aqil Ahmad, Mohammedan Law, 23rd Edition
- Dr. Paras Diwan, Muslim law in Modern India, 12th Edition
- M. Hidayatullah, Mulla Principle of Mohammedan Law,19th Edition
- SCC Online
- Supreme Court Words and Phrases, 3rd Edition, Eastern Book Company
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