Concept of wills under Muslim law

Introduction: 

When a person dies his/her property devolves upon his/her heirs. A person may die with or without a will (Testament). If a person dies leaving a will i.e. dies intestate, the property is distributed among his/her heirs according to the rules of Testamentary Succession. In other words, the property is distributed as per the contents of the testament or will. On -the other hand. if a person (lies leaving no testament (will) i.e. dies intestate, the rules of intestate Succession are applied for distribution of the property among heirs.

Will - Meaning:

A 'Will or Testament' is a document or an instrument. which declares or contains the intention of the owner of the property as to how his property is to be disposed of (distributed) after his/her death. The will takes effect on the death of the person making it. It can be revoked by the maker, before his death.

Testator: The person, who makes/creates a will is called 'Testator'.

Legate: The person/persons, in whose favour, the will is created is called 'Legatee',

Legacy: The subject matter of the will is called 'Legacy'. It is the property to be distributed among the heirs.

Executor: The testator, while executing the will, may appoint a person to execute the will in accordance with its contents (after his death). He is called 'Executor'.

In the absence of the appointment of Executor by the testator, the Court may appoint a person called 'Administrator' to execute thee will.

Codicil: Codicil is an instrument of math in relation to will. It is a part of the will.

Abatement of Legacies: When a testator bequeaths more than one-third of the property, and the heirs refuse to give consent, it is to be adjusted accordingly.

Lapse of Legacy: If the Legatee does not survive, the bequest (Property under the will) is distributed as if there is no will.

Definition: "A will or Wasiyat" is defined as 'an instrument by which a person makes a disposition of his property to take effect after the death which is in its own nature ambulatory and revocable during his life'.

Essentials/Requisites of will: A will to be valid, the following conditions are to be satisfied.

1. Capacity./Competence of Testator;
2. Competence of Legatee;
3. Subject Matter:
4. Testamentary Capacity.

1. Capacity./Competence of Testator: According to Muslim Law, any individual, who is noteworthy and is of sound personality can make a will. In any case, a minor can make a will subject to approval on accomplishing larger part. As indicated by Muslim Law, the period of Majority is 15 years, yet it isn't pertinent to the wills in India.

2. Competence of Legatee: Any individual having the ability to hold the property can be a legatee. The Legatee might be a Muslim or a Non-Muslim. man or lady a noteworthy or a minor or even a kid in the womb gave the youngster is conceived inside a half year of the demise of the departed benefactor.

3. Subject Matter: A Muslim can pass on any property portable or relentless, physical or ethereal, which must be in the presence and transferable at the season of deceased benefactor's demise.

4. Testamentary Capacity: A Muslim can't discard by will more than 1%3 of the net resources in the wake of permitting (meeting) for the obligations and memorial service costs of the deceased benefactor (under both Hanafi Law and Shia Law). The rest of the 2/3 offer ought to be made accessible for appropriation among the beneficiaries. Notwithstanding to pass on the 1/third offer, the Muslim needs to acquire the assent of alternate beneficiaries. Significant Case on this point is: GULAM MD.vs. GULAM IIUSSAIN, AIR 1932 PC 81 ... Held for this situation that, estate for beneficiaries without the assent of different beneficiaries is invalid.