A Will is defined as a legal document by which a person expresses his wish to distribute his property after his death and manage the property until its distribution. The important feature of Will is that it becomes effective after the death of the person and it can be changed anytime before the death.
Unlike any other transfer medium of property (sale or gift), the person who makes the will have full control over the property, till he is alive. No one can interfere in property matters, including the distribution or transfer of the property.
The object of the Will according to the view of the prophet is clear that after the death of a person, his property has to be distributed to his heirs and this rule is considered as the divine law and any interference to it is unacceptable. Prophet had proclaimed that such testamentary powers (power to transfer the property) must not exert any damage to the lawful heirs. On the other hand, it is the moral duty of every Muslim to make appropriate arrangements for his property after his death.
No writing is necessary to make a Will valid, and no particular form, even verbal declaration is not required as long as the intention of the testator is sufficiently ascertained.
Where the Will is reduced to writing it is called a ‘Wasiyatnama’. If it is in writing it need not be signed. It does not require attestation and if it is attested there is no need to get it registered. The Will can be made orally as well as by gestures.
Instructions of the testator written on plain paper, or in the form of a letter, that in clear terms provide for the distribution of his property after his death will be considered as a valid Will. In case, a Will is oral, the intention of the testator should be sufficiently ascertained. In comparison to a Will in writing, which is easier to prove, the burden to prove is more in an oral Will.
A Muslim can make a Will in favor of anyone, only to the extent of one-third of his total property after his funeral expenses and debts are paid. If the Will is made beyond one-third of the property, the consent of the legal heirs is mandatory, no matter in whose favor the Will is made.
Conditions for a valid Will :
The person making the Will must be competent to do so
The person mentioned in the Will must be competent to accept the Will property
The property must be valid
The transfer of the property must be within the limits imposed on the testamentary power of a Muslim
Every Muslim who has completed 18 years of age can make a Will. He must be of a sound mind (when the Will is being made). The person making the will must be capable of understanding the legal consequences of his activities in long term.
A Will that is executed after death is valid, but under Shia law, if a person executes a Will after attempting to commit suicide, the Will becomes void. As it is the possibility that the person is not in his right state of mind. A minor (under 18 years of age) can make a Will, but such Will is void, it can only be validated as he attains majority.
A Will made by undue influence, coercion or fraud, is not valid. Thus, a Will must be executed by the person making it with his free consent. The court recognizes the right of a pardanashin lady to make a Will.
The person must be Muslim at the time he makes or executes a Will. A Will can operate only after the death of the person making it, before the death, it is just a declaration based on which the property gets distributed. The Will is also valid if it has been executed by a Muslim, but ceases to be a Muslim at the time of his death.
The Will is governed by the rules of that school of Muslim law to which the legator belonged at the time of execution of the Will. For example, if the legator was a Shia Muslim at the time of writing the Will, only Shia law of Will is made applicable.
Muslim law confers on a Legator a right to revoke his will. A Muslim testator may revoke, during his lifetime, any Will made by him expressly or impliedly. Thus, if he sells, makes a gift of the property, or deals with the same in any other manner like constructing a house on the piece of land mentioned in the Will earlier, would be considered as a revocation.For example, if the testator gives land to his friend under a Will but a year later gifts the same to his daughter, the transfer by Will, in favor of the friend gets automatically revoked.
Where a Legator makes a Will, and later by way of Will gives the same property to someone else, the prior Will is revoked. But a later Will (though of the same property) to another person in the same Will does not operate as a revocation of prior bequest, and the property will be divided between the two legatees in equal shares.
It is not necessary that for revoking an earlier will, another will must be made. A Will can be revoked by a simple and clear declaration to that effect or by a formal deed of cancellation or revocation of Will.
