What is Will and the general rules of the Will
Introduction
Will also
known as Wasiyat mean is the agreement of property by the testator {owner of
the property} in favour of Legatee {the person for whom the bequest is made},
to take effect after the testator’s death subject to certain limitations and
conditions.
General rules of will
- The person who may dispose of his property by will must be competent, i.e. a Muslim of sound mind who has attained at the age of majority and has a clear intention to bequest.
- The will may be made orally or in writing. However. Will in the form of writing is more preferable and authentic.
- The bequest made shall take effect after testator’s death and not before that in any case.
- A disposition of property by will cannot be made more than one third after payment of funeral expenses and debts if any. The limit on testamentary power of a Muslim to be bequeath is limited to 1/3 only.
- There is another limitation i.e. legal heirs cannot be the beneficiaries of a will It is a general rule based on the hadith: “there is no will for legal heirs”.
Exceptions:
However, under the Hanafi School this general rule has one
exception that the will in favour of any legal heir must be consented by other
legal hires, and it must not be beyond 1/3, only then will in favour of legal heirs
is valid.
- No consent is needed if the bequest is made in favour of the person who is not a legal heir. However, the limitation continues to be 1/3.
- Under Shia law will can be made even to legal heirs, so long as it does not exceed 1/3 of his estate. Even if the other heirs do not agree, such a legacy is nonetheless enforceable. But if the legacy exceeds 1/3, it is not valid unless the other heirs consent thereto; such consent may be given before the death or after the death of the testator. However, if one heir is to inherit the entire estate while the other heirs are completely disqualified from receiving any inheritance, the bequest is null and void.
- The will is affected after the testator’s death and is implemented after the discharge of funeral expenses and debt if any, but before the actual division of property by way of inheritance law.
- A bequest may be made of any property which is capable of being transferred and which exist at the tester’s death. However, it need not to be existence at the date of will unlike gift.
- A bequest to a person not yet in existence at the testator’s death is void. However, If a bequest is made for a child in the womb, if the child is born within six months of the will's date, it is deemed valid.
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- It is to be noted that a person cannot be compelled to make a will by undue influence, fraud, coercion or any other illegal means.
- A will can be made to any person, man or woman adult or minor, Muslim or non-Muslim. A bequest can be made for religious or charitable object as well.
