MUSLIM WILLS

MUSLIM  WILL  (WASIYAT)

Generally a person starts thinking about executing a will when he develops a feeling that he is getting aged or has become so sick that death is imminent. The expression "will" means 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 (See Section 2(h) of the Indian Succession Act 1925). It is always preferable to reduce the will to writing.

 Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus. In the absence of a will the provisions of the Hindu Succession Act 1956 shall apply. In the case of Christians the Indian Succession Act would apply. Generally speaking, a good number of Christians in India prefer to execute a will whereas it is a rare phenomenon in the case of Hindus.

The author intends to deal with Muslim wills and that too a particular aspect of it. It is well known that a Muslim  cannot  bequeath more than a third of his net estate unless heirs give their consent for a higher bequest. It may be noted that in the pre-Islamic era there were no such restrictions on the bequests and a person can bequeath the whole of his properties to any person of his liking. But after the advent of Islam it has become an accepted practice of limiting the bequest to one third.. The Koran did not as such provide for this restriction but the tradition or Hadith.

Sa’ad ibn Abī Waqqās was a companion of the Prophet Mohammed and had only one daughter.  One day when Waqqas fell ill   he said the following :

                      “ O Messenger of Allah. I have wealth and I only have one daughter to inherit from me. Shall I give two thirds of my wealth as Sadaqah?" "No," replied the Prophet. "Then, (shall I give) a half?." asked Sa'ad and the Prophet again said 'no.' "Then, (shall I give) a third?' asked Sa'ad. "Yes," said the Prophet. "The third is much. Indeed to leave your heirs well-off is better than that you should leave them dependent on and to beg from people. If you spend anything seeking to gain thereby the pleasure of Allah, you will be rewarded for it even if it is a morsel which you place in your wife's mouth.”

So the above tradition of Muslim law is the basis for the one third rule relatingto  Muslim wills. Most of the Muslims   follow this rule because a will , to quote Ameer Ali “ is a divine institution”. Though there is no restriction on gifts inter vivos still Muslim law do not permit him to bequeath more than one third.

Is there any possibility to get over this mandate related to the divine institution? Can a Muslim bequeath more than one-third of his properties to a stranger or any person of his liking? The answer is “yes”. If a Muslim gets his marriage registered under the Special marriages Act 1954 then he has all the powers of a testator under the Indian Succession Act 1925. It may be noted that the religion of the person is not at all affected by the registration of the marriage under the 1954 Act. He continues to be a Muslim and his rights and duties as a Muslim remains the same except his statutorily acquired power to bequeath the whole of his properties by way of a will. Many rich Indians are now using this route for the purpose of preparing the will.

A planning against the will of the prophet ?!!!!!!..........