Wills under Muslim Laws

Date : 2021-06-22


A Will or Testament or Wasiyat refers to an instrument by which an individual (i.e. testator) announces to distribute his property which shall be effective after his/her death. 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 (such as a sale or gift), the testator retains complete control over the property bequeathed while he is still alive: the legatee or beneficiary under the Will is prohibited from interfering in any way with the testator's power of enjoyment of the property, including its disposal or transfer (in that case the Will becomes revoked).

Who can make a Will under Islamic Laws?

* An individual of a Muslim community can make a will, if he is above 18 years of age and of sound mind. The Indian Majority Act, 1875 regulates the age of majority and a person attains the age of majority only after completion of 18 years (or on completion of 21 years, if he is under supervision of Courts of Wards). Therefore, the testator should be of 18 or 21 years of age at the time of making a will in India.
* According to Muslim laws, a testator must have sound mind and is capable of understanding the legal consequences of his/her activities in the long run. A will that is made in fear of death is valid, however, under the Shia law, if an individual makes a will after attempting suicide, the will is considered void.  
* As per law, a minor is incompetent to make a will, hence the will shall be declared void. However, if a will made can be validated only upon his/her ratification on attaining majority. It is to be noted that a will made under coercion, fraud or undue influence is marked as invalid, and the court is extra careful in admitting a will of a pardanashin lady. Therefore, a will is valid only if the testator has free consent.
* The testator should be a Muslim at the time of making a will. A will shall come into force after the death of the testator, though before the death, the testator must clearly declare the distribution of assets among his/her successors. 
* The will under Muslim Law is valid, in case it is made by a Muslim person who ceases to be a Muslim at the time of his/her death.
* Wills are governed by the rules and regulations made under the school of Muslim Law.

Disqualification of Inheritance under Muslim Law

The following are the reasons for disqualification, which prevents all heirs from inheriting the intestate's assets:

According to the Sunni Law, a person who was involved in killing or cause of death due to any reason is disqualified from inheriting assets of a deceased person. However, it is different under Shia Law, death of a person unless caused intentionally by a legal heir, he/she cannot be barred from succession of assets of the deceased. 

According to Hannafi School, an illegitimate child is not allowed to inherit assets of a deceased person. In addition, a legal heir cannot inherit from his/her father, however is allowed to inherit from his/her mother and maternal side. Also, a mother can inherit property from her illegitimate child.
Although under the Ithana Ashari School, an illegitimate child cannot inherit the property of his/her parents and is looked down upon in the society. 

According to the rules and regulations under Islamic law, a widow is never denied her right to succession. Also, a widow with a child or grandchild is entitled to one eighth of the assets of the deceased husband. Though in the case of a widow without a child is entitled to one-fourth assets of the deceased husband.

As per the rules, daughters are entitled to inherit assets. However, a few times they are not part of inheritance by custom or statute, in that case the assets are divided as if they never existed. 
For instance, the Gujars of Punjab and people of Jammu and Kashmir are not included under inheritance due to custom. Daughters succeed the assets only in case of default agnates. According to the Bombay Watan Act, 1886, if a muslim landlord (watandar) passed away leaving behind a widow, a paternal uncle and a daughter, then the daughter has no right in the watan land. And, the widow or the paternal uncle inherit the land like no daughter exists.

According to Islamic law non-Muslim cannot inherit property from a Muslim. Though, this is not the case in India. Even if a Muslim has abandoned Islam or otherwise ceased to be a Muslim, he will be entitled to an inheritance in the property of his deceased Muslim relative, of whom he is the heir. His non-Muslim offspring, on the other hand, will not be eligible to inherit the deceased M's property.

As per the Muslim law, if a person dies without a legal successor, his possessions are escheated to the government.


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