Wasiyat: Concept and Formalities
Authored By- Pratibha Kumari
There are different methods prescribed under both Hindu and Muslim personal laws regarding the transfer of property. In Muslim law, a person can convey his property by gift, making Waqf, or by creating a will. ‘Wasiyat’ or ‘Will’ is an instrument or document through which a property is transferred from one person to another person and its execution takes place after the death of the transferor. The rules regarding Will/ Wasiyat under Muslim Law are applicable only to Muslims. If in case if a Muslim has married under the Special Marriage Act, 1954, he can make Will following the Indian Succession Act, 1925. A Muslim can deliver his property by following certain restrictions. The Quran provides legality of Wasiyat (Will). However, the restriction up to 1/3rd part is given in Hadis (as per said by Sa’d Ibn Abi Waqqas).
Concept of Wasiyat: Introduction and Meaning
In Islamic law, Wasiyat is basically a document by which a person could convey his property after his death to the one with whom he is interested to do so. Through Wasiyat, a person makes a gratuitous transfer of his property. A Wasiyat is always executed after the death of its creator. It is proof that the person had legally declared the transferring of his property to another person. The person who creates the will or executes it is known as ‘Legator’/ ‘Testator’ and the one in whose favour the will is made or executed is known as ‘Legatee’/ ‘Testatrix’. Wasiyat is considered as a divine instrument in Muslims, as it had been governed by the Holy Quran.
It is very essential to know that a Muslim person had the power to transfer his property to anyone he desires but only upto 1/3rd of the total property and if wishes to transfer property exceeding 1/3rd part¸ he had to first take the connivance of his legal heirs. This rule is strictly followed. Even Mohammad Prophet had also said in his teachings that Testamentary powers related to inheritance and succession should not hurt the rights of legal heirs of the Testator.
Essential Elements of a valid Wasiyat
1. There Must be a competent Testator- Every person who is a Muslim and is above 18 years of age (as per given under the Indian Majority Act, 1875 also). He must be of sound mind (i.e. he must be aware of the consequences of his act). The Legator should give her free consent. A Waisyat is executed only after the demise of the legator, before that, it is a mere declaration that the legatee might get the property in the future.
2. There must be a competent Legatee- Any person can take the bequeathed property either he is a child, Muslim or non- Muslim, child in his mother’s womb, insane, charitable or religious institution (but not related to other religions). Legatee must be alive during the will being executed. In case of child in mother’s womb, is also considered as living under Muslim Law, but he must be alive in mother’s womb during the declaration of will and according to Sunni law, should beborn alive within 6 months and according to Shia law, within 10 months from the date of execution. A person who is responsible for the death of a legator shall not be entitled to get the transferred property.
3. The subject of Wasiyat- The subject of Will i.e. property must be in existence, capable of transfer and Legator must be the owner of that property. The property to be transferred could be either movable or immovable.
4. The extent of Will- The testator can only bequest 1/3rd of his property to a non- Muslim whom the former wants to and the rest would be bequeathed by intestate succession. This is so to preserve the rights of legal heirs of the testator. If the 1/3rd part is transferred to the heir then, under Sunni law, other heirs need to be consented but in Shia law, consent of other heirs is not required.
Formalities of Wasiyat
Muslim law does not provide any specific formalities for the transfer of Will. The most important requirement is that Legator shall give his expressed, clear, and unambiguous consent while making the Will.
A Will can be made through-
1. Oral Will- Legator if simply declares the will considered as a valid one. But the burden of its verification would be a bulky task. It had to be proved with utmost obedience along with accuracy in date, time, and place.
2. Written Will- A will to be declared in writing needs no specific formats. Even a written Will does not require signature of Legator or attested by witnesses.
3. Will made through gestures- Muslim Law allows the will to be made via gestures too. Illustration- A sick person could not speak due to his weakness, so, if he bows his head in a compendious way. If his way is understood that what he is trying to convey and after that, he died in that non- speaking state, then the Will is said to be valid.
Construction of Will
A Will construed must be in the language which the Legator wants and must show his intention to transfer the property. Many times, the language of the Testator is vague and his intention is not clear. In such a situation, the discretion is left to the heirs to explain the Will in the manner they want.
Registering of Will is not necessary but burden of proof is easy if the Will is registered in case of any dispute arises. Sec. 40 and 41 of Indian Registration Act deals with registration of Will. No particular time limit has been set for the registration. The Executor can put the Will in front of the Registrar/ Sub-registrar for registration.
Revocation of Will
Under Muslim law, Testator had unrestrained rights to revoke the Will or Wasiyat or any part of it which he had made. In a similar way, he can even add anything to the Wasiyat he had made.
Ways in which will can be revoked -
1. Express Revocation- A Legator can either by oral or written, which indicates that he desires to revoke the Wasiyat, will be considered as valid revocation. Suppose if ‘A’, a legator transfers his property to ‘B’. After A makes a will transferring the same property to ‘C’, then Will made in favour of B will be considered as revoked. Mere denial of Wasiyat is not included under revocation.
2. Implied Revocation- Any action done by the Testator against the transfer will be considered as revocation of Wasiyat (in implied way). Suppose, ‘A’ executed a will and gave land to ‘B’. Later on, A builds a house on land or gifts to ‘C’, then the Wasiyat is said to be revoked.
Diminishing of Legacy
Under Sunni Law, diminishing occurs in a rateable manner and Shia law deals with Preferential distribution. Under the former distribution, a person who transfers his property in a certain ratio exceeding the 1/3rd part then the diminishing will be done in the same percentage or ratio in which the property had been alienated. Under the Preferential distribution, no diminishing of shares will be done instead of that shares would be allotted according to the preferences, which is decided in order the legatee’s name is mentioned. The one whose name is at first will get his full portion and the remaining portion will be distributed to the afterwards heirs. This means that either the heir will get his whole portion or will get nothing.
Wasiyat is an instrument through which a Muslim person transfers his property with his full consent to another person. It provides the person with certain powers to bequeath his property to the person of his choice. Besides granting powers, law also protects the rights of heirs in the property by limiting the powers of bequeathing the Testator. Quran had also recognized the transferring of property through Will. Succession Laws had recognized certain standard formats to bequeath the property of Muslim to another person, in order, to make it easy for Muslim person transferring his property. Moreover, provision for registration and revocation of Wasiyat had also been given.