“THE PURPOSE OF WILLS IN ISLAM”

FINAL DRAFT SUBMITTED IN THE FULFILMENT OF THE COURSE TITLED – FAMILY

LAW 2

SUBMITTED TO:

Mr. RAVI RANJAN

FACULTY OF FAMILY LAW

SUBMITTED BY:

NAME: RAJ KRISHNA

COURSE: B.A., LL.B (Hons.)

ROLL NO: 1359

SEMESTER: 4th

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR, MITHAPUR, PATNA

– 800001

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DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A., LL.B (Hons.) Project Report entitled “The
purpose of wills in Islam” submitted at Chanakya National Law University is an authentic record
of my work carried out under the supervision of Mr. Ravi Ranjan. I have not submitted this work
elsewhere for any other degree or diploma. I am fully responsible for the contents of my Project
Report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE: RAJ KRISHNA

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.

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ACKNOWLEDGEMENT

I would like to thank my faculty Mr. Ravi Ranjan whose guidance helped me a lot with
structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present
way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped me
out at every stage of my project.

THANK YOU,

NAME: Raj Krishna

COURSE: B.A., LL.B. (Hons.)

ROLL NO: 1359

SEMESTER – 4th

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INDEX

INTRODUCTION …………………………………………………………………pg. 5

* AIMS AND OBJECTIVES

* HYPOTHESIS

* RESEARCH METHODOLOGY

* SOURCES OF DATA

* LIMITATON

1. LAWS OF WILL AND LEGACIES…………………………………….….pg.7

2. LAWS OF WILL UNDER ISLAM………………………………………….pg8

3. PURPOSE OF WILLS IN ISLAM…………………………………….……pg.12

4. LIMITATION OVER MAKING A WILL…………………………..………pg14

5. CONCLUSION AND SUGGESTIONS……………………………………..pg 17

BIBLIOGRAPHY………………………………………………………………………pg18

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INTRODUCTION:

A will is defined as 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. The word denoting will in Islam is
Wasiyyat. This word has various meanings besides a will. It also signifies a moral exhortation.

A will is usually drafted by the person who wants to make disposition of his property. Having
hardly any knowledge of law and being his own composition at which he may never have been
too good, he is likely to leave loopholes.

AIMS AND OBJECTIVES:

1. The researcher tends to analyze the laws of will and legacies under Islam

2. The researcher tends to find the purpose of wills in Islam.

3. The researcher tends to give certain suggestions after analyzing the present law.

HYPOTHESIS:

The researcher tends to presume that amendments are required in the existing laws because of
certain lacunas.

RESEARCH METHODOLOGY:

The researcher has relied upon Doctrinal method of research to complete the project.

SOURCES OF DATA:

The researcher has relied on both primary and secondary sources to complete the project.

1. Primary Sources: Acts and cases

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2. Secondary Sources: Books, newspapers and websites.

LIMITATIONS OF THE STUDY:

The researcher had territorial, monetary and time limitations in completing the project.

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1. LAW OF WILL AND LEGACIES: CONCEPTUAL DISCUSSION

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 dies leaving no testament (will) i.e. dies intestate, the rules of intestate Succession are
applied for distribution of the property among heirs.1

Will – 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 favor, 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.2

1
Kamaluddin Khan, Law of Wills in Muslim Law Muslim Testamentary Succession, Two Circles (April 16, 2017,
11:30 a.m.),
http://twocircles.net/legal_circle/law_wills_muslim_law_muslim_testamentary_succession_kamaluddin_khan.html
2
Id.

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 2. LAWS OF WILL UNDER ISLAM

When a Muslim dies there are four duties which need to be performed. These are:

1. Payment of funeral expenses

2. Payment of his/her debts

3. Execution his/her will

4. Distribution of the remaining estate amongst the heirs according to Sharia

The Islamic will is called Al-wasiyya. A will is a transaction which comes into operation after
the testator’s death. The will is executed after payment of funeral expenses and any outstanding
debts. The one who makes a will (wasiyya) is called a testator (al-musi) and the one on whose
behalf a will is made is generally referred to as a legatee (al-musa lahu).

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 of Testator: – According to Muslim Law, any person, who is a major and is of
sound mind can make a will. However, a minor can make a will subject to ratification on

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attaining majority. According to Muslim Law, the age of Majority is 15 years, but it is not
applicable to the wills in India.3

2. Competence of Legatee: – Any person having capacity to hold the property can be a legatee.
The Legatee may be a Muslim or a Non-Muslim, man or woman a major or a minor or even a
child in the womb provided the child is born within 6 months of the death of the testator.4

3. Subject flatter: - A Muslim can bequeath any property movable or immovable, corporeal or
incorporeal, which must be in existence and transferable at the time of testator’s death.5

4. Testamentary Capacity: - A Muslim cannot dispose of by will more than 1/3rd of the net
assets after allowing (meeting) for the debts and funeral expenses of the testator (under both
Hanafi Law and Shia Law). The remaining 2/3 share should be made available for distribution
amongst the heirs. Even for bequeathing the 1/3rd share, the Muslim has to obtain the consent of
the other heirs.6

In Md. Gulam.vs. Gulam Hussain7 it was held that, bequest in favor of heirs without the consent
of other heirs is invalid.

An heirless Muslim can bequeath his entire property. In case, his wife is the only heir, he can
bequeath all his properties minus the share of his wife.

3
Id.
4
Id.
5
Id.
6
Id.
7
Md. Gulam vs. Gulam Hussain, AIR 1932 PC 81

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Formalities of Wills: – Muslim law requires no specific formalities for creation of a will. It may
be made in writing or oral or even by gestures. Though it is in writing, it need not be signed by
the testator and attested by the witnesses. It is necessary that the intention of the testator should
be clear and unequivocal.8

Construction of Will: - A Muslim will is to be construed in accordance with the rules of

construction of the will as laid down in Muslim Law. Will is a document created by any person
during his life time, which operates after his death. The contents of the will are to be
implemented to fulfill the intention or desire of the testator after his death. Sometimes, the
contents may not be clear. In such a case, it may be interpreted as per the option of the heirs.9

For instance, if the testator, to his will, bequeaths one house to heir A and the other for heir B
without any specification. Then, the heirs have to make necessary arrangement.

Revocation of Will: - A Muslim will or any part thereof may be revoked by the testator at any
time before his death. The revocation may be express (oral or in writing) or implied. A will may
be expressly revoked by tearing it off or by burning it. Any act, which results in the extinction of
the subject matter or proprietary rights of the testator, will impliedly revoke the will. For
instance, if the testator transfers the same property by sale or gift subsequently to another, it
amounts to implied revocation.10

8
Khan, supra note 1.
9
Id.
10
Id.

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DEATH – BED – GIFT (MARZ-UL-MIAUT)

When a person creates/makes a gift out of an apprehension (fear) of imminent death and dies
later, it is called “Death-Bed-Gift”. In other words, if a person makes a gift during illness and
dies later, it is called Death-Bed-Gift or Matz-Ul-Maut. 11

It is subject to two restrictions: (i) disqualification of heir; and (ii) property disposed of should
not exceed 1 /3 of the net assets. These restrictions may he relaxed with the consent of the heirs.

The Death-Bed-Gift is valid only when the donor dies of illness during which the will was made.

Essentials of Death-Bed-Gift (Marz-U1-Maut):

I . There must be an apprehension as to immediate death.

2. To effect the transfer of property, by way of gift in anticipation of death.

3. Mere apprehension of death as to old age is not sufficient.

Section 129 of T.P. Act deals with Death-Bed-Gift or Donatio Mortis Causa. Similarly, Section
191 of the Indian Succession Act. 1925 deals with Death-Bed-Gift with regard to movable
property.

With regard to the restrictions of making a death-bed-gift by a Muslim, the rules with regard to
disposition to the extent of 1/3rd net assets (after meeting debts and funeral expenses of testator)
and also to obtain the consent of other heirs, are applicable in the Case of Marz-ul-Maut also.12

11
Id.
12
Id.

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 3. PURPOSE OF WILLS IN ISLAM

The importance or purpose of the Islamic will is clear from the following two hadith:

"It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing
a will about it." - Sahih al-Bukhari 13

"A man may do good deeds for seventy years but if he acts unjustly when he leaves his last
testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If, (on
the other hand), a man acts wickedly for seventy years but is just in his last will and testament,
the goodness of his deed will be sealed upon him, and he will enter the Garden."

- Ahmad and Ibn Majah 14

The will gives the testator an opportunity to help someone (e.g. a relative need such as an
orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will can
be used to clarify the nature of joint accounts, those living in commensality, appointment of
guardian for one’s children and so on. In countries where the intestate succession law is different
from Islamic law it becomes absolutely necessary to write a will.15

An Islamic will gives a person the opportunity to help those less fortunate. He or she can assure
that the charities they supported in their life are not neglected at their time of death. A will helps
not only the beneficiaries, but can help the deceased person too who may wish to set up
provision for an ongoing charity, an action that continues to be rewarded even after death. In
accordance with the principle that one third of a person’s estate may be distributed as he or she
13
The Islamic Wills, Islam 101 (April 27, 2017, 9:30 p.m.), http://www.islam101.com/sociology/wills.htm
14
Id.
15
Id.

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wishes the prophet Muhammad, may the mercy and blessings of God be upon him, said, “God
was being generous to you when He allowed you to give one-third of your wealth (in charity)
when you die, to increase your good deeds.16

16
Aisha Stacey, Islamic Religion and Wills, Islam Religion (April 21, 2017, 11:30 p.m.),
https://www.islamreligion.com/articles/5217/viewall/islamic-inheritance-and-wills/

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 4. LIMITATION OVER MAKING A WILL

A Muslim is immune from the application of the Indian Succession Act, 1925. The provisions of
the Indian Succession Act, 1925 are not applicable in the cases of Muslims. However, a Muslim
cannot claim immunity if his marriage is held under the Special Marriage Act, 1954. In such
cases the provisions of Indian Succession Act, 1925 shall be applicable.

Islamic law allows a person to bequeath up to 1/3 (one third) of his or her estate to whomever he
or she wishes, providing the beneficiaries are not from amongst those who will benefit from the
remaining 2/3 (two thirds). Those who are entitled to the final two thirds of the estate are set out
in chapter 4 of the Quran. When one of Prophet Muhammad’s close companions suffered from a
severe illness he asked how much of his vast wealth he should bequeath as a gift because he only
had one daughter who qualified to be an inheritor under Islamic law. 17

Bequeath able One-third: – It means a third of the estate of the testator as is left after the
payment of the funeral expenses, other charges and debts of the deceased (testator). All schools
of Muslim Law except the Ithana Ashari School lay down that bequest of more than one third
unless consented to by the heirs is invalid or a custom or usage so permits.18

Differences between Shia and Sunni Law on Will

Sunni Law Shia Law

Bequest to an heir
without consent Bequest up to 1/3 of the property is valid even without consent.
of other heirs is

17
Id.
18
Khan, supra note 1.

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invalid.

Bequest to
unborn child is
valid if the child
Valid if the child is born within 10 months of making the will.
is born within 6
months of
making the will.

Legatee who
causes death even
by accident is Legatee who causes death by accident is capable.
incapable of
receiving.

For a bequest of
more than 1/3 to
a non-heir, the
consent of heir Heir's consent may be obtained before or after death.
must be obtained
after the death of
testator.

Will of a person
committing Valid only if the will is made before the person does any act towards committing suicide.
suicide is valid.

Recognizes
rateable Does not recognize rateable distribution.
distribution.

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If the legatee dies
before testator,
the legacy lapses The legacy lapses only if the legatee dies without heirs otherwise, it goes to legatee's heirs.
and goes back to
the testator.

Legatee must
accept the legacy
Legatee can accept the legacy even before the death of the testator.
after the death of
the testator.

If we look at the limitations of making a will, we observe that it is more in Sunni law than in
Shia law. It can be said as under Islam 1/ 3rd property can be given in will. However, in case of
Sunni’s, the consent of the heirs need to be taken while disposing off that property in will which
limits the rights of testator to make a will. Whereas in Shia Law such is not the case, consent of
heirs are not required to make a will.

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 5. CONCLUSION AND SUGGESTIONS

Islam is guidance from God that directs us through life, and God willing into the next life. It is
for this reason that God also guides us through the process of death and dying. Death will come
to each and every one of us; however there are things we can do to make our passing easier for
those we leave behind. One of those things is to make sure we leave an Islamically sound will.
Islam has placed great emphasis on both the laws of inheritance and making a will, thus there is
compelling evidence that every sane adult Muslim should have a will.

An Islamic will gives a person the opportunity to help those less fortunate. He or she can assure
that the charities they supported in their life are not neglected at their time of death. A will helps
not only the beneficiaries, but can help the deceased person too who may wish to set up
provision for an ongoing charity, an action that continues to be rewarded even after death. In
accordance with the principle that one third of a person’s estate may be distributed as he or she
wishes the prophet Muhammad, may the mercy and blessings of God be upon him, said, “God
was being generous to you when He allowed you to give one-third of your wealth (in charity)
when you die, to increase your good deeds.

However, slight changes are required in the existing laws of will under Sunni law, wherein
consent of heirs are required while making a will. This limits the rights of testator to make a will.
This provision should be removed as it will help the testator to make a free will without any
problem. Further the heirs are also getting the remaining 2/3rd of the property which makes much
sense.

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 BIBLIOGRAPHY

1. BOOKS:

Dr. Qureshi M.A., Muslim Law, Central Law Publications.

2. WEBSITES:

www.indiankanoon.org

www.legalservicesindia.com

www.islam101.com

www.twocircle.com

www.islamreligion.com

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