Theoretical overview
Wasiyat or will is a document which states the desire of the person of what needs to be done with his property after his death. He can do anything with the property according to his will. The property cannot be transferred when he is alive. Under Muslim law, a person cannot make will of more that 1/3rd of his property. His legal heir cannot be considered as a legatee in a will. A legate is the one who gets the property from the will.
Parties to the will are –
- Testator – the one who makes the will
- Legatee – the one, in whose favour the wasiyat is made
Essential of a valid wasiyat –
- Testator must be competent – he must be a muslim major of sound mind. Moreover, he should have the capacity as well as the right of making the will.
- The legatee must be competent to take legacy – legatee must be any person belonging to any religion. A child in the womb can also be the legatee provided that he would be alive within 6 months.
- Subject matter of the will – it must be a valid property that can be transferable. Property must be in existence during the execution of the property.
- Bequest must be within limits of testamentary powers of a muslim – heirs of the person cannot be a legatee. Not more than 1/3rd of the property after deducting funeral expenses and other debts can be transferred in the will. However, he legal heir can be a legatee when all the other heirs consents to do so.
Revocation can be done expressly by orally or written or it can be implied with the conduct of the party.
Relevant section
It is governed under shariat act which is not codified in itself
Important case laws
Illahi Samsuddin vs. Jaitunbi Maqbul – it was held that under Muslim law, declaration as well as acceptance of the gift may be oral or written or whatever may be the nature of the property gifted. Where gift is made in writing, it is known as Hibanama.
Points to remember
- Wasiyat or will is a document which states the desire of the person of what needs to be done with his property after his death
- Under muslim law, a person cannot make will of more that 1/3rd of his property
- His legal heir cannot be considered as a legatee in a will
- A legate is the one who gets the property from the will.
