Law on Will (‫)وصیت‬

Introductory Remarks
There are many modes of transferring property from one person to another. A gift and
sale are non-testamentary while, will is testamentary, in which a person declares his wishes to
transfer his property to certain persons or in certain way, as per his wishes, to take effect after
his death. Islamic law restricts the testamentary powers of a Muslim in certain respects. The
will is legislated according to the Quran, Sunnah and consensus.

Meaning and Definition

Will is the term of which equivalent in Arabic is 'wasiyat'. Literally it means
Direction, Instruction & Order. Literally it means Direction, Instruction & Order.
Technically, it’s a contract by a person about the transfer of ownership to another after
the death of the person making the offer.
It may be defined, in the words of Baillie as:
“Conferment of the right of property in a specific thing or in a profit or advantage or in a
gratuity to take effect on the death of testator'".
Hence, it is a legal declaration of the intention of the testator with respect to his property,
which he desires to take effect after his death.

The legal validity of wasiyyah (bequest)

Bequest is permitted by the Quran, Hadith, Consensus but Analogy (qiyās) denies the
permissibility of bequest, because it is the transfer of ownership at a time after death.
Ownership is lost with death and its transfer after death is not conceivable.
Wașiyyah (bequest) is permitted according to the school by way of Istihsān. The istihsān
itself is based upon the Qur'ān, the Sunnah and upon Ijmā' (consensus).
According to Ușūl al-fiqh, the legal personality of the deceased (ahliyyah) continues to
exist in a deficient form till his estate is distributed. Consequently, ownership survives in this
weak form till his instructions and obligations are met. The estate is not a legal person under
Islamic law, as it is in Roman law.

Purpose of The Bequest

Wasiyyah, or bequest, is a recommended practice for both religious and worldly
reasons. It's a suggested agreement, not mandatory. You can use it for religious obligations or
helping individuals, or a combination of both. If the bequest is only for religious matters and
the one-third isn't enough, family approval is needed. It follows a priority order: first essential
duties, then important ones, and finally, extra ones. If it involves both religious purposes and
helping people, the one-third is shared between them, following the same priority within
religious matters.
The essential elements of Bequest
The single element of bequest is
 The single element of bequest is Sigha / Form. I.e., Offer & Acceptance. If the
Legatee accepted it would be Valid.
Where the testator is not rich it is recommended that wasiyyah pertain to less than one-
third of the estate
Where the testator is not rich and the two-thirds of the estate left for the heirs is not
sufficient for the need is of the heirs, it is recommended that wasiyyah be for an amount that is
less than one-third, say one-fourth or one-fifth.
Where the heirs are rich, there is no harm if a bequest for one-third of the estate is made.

Requisites of Valid Will

Under Islamic law following are the prerequisites of a valid will:
(i) Testator to be a competent person
(ii) Legatee to be capable of taking the legacy
(iii) Objects must be permitted under Sharia
(iv) Subject matter must not be illegal
(v) Bequest must be within extent and limits prescribed by Islamic law
So, these prerequisites may be classified into

(a) Parties to Will

There are at least two parties to each will i.e. testator and legatee. Following are the
rules for the competency of each party:

(i) (‫)موصی‬Testator and his Competency

In order to make a valid will the testator must be an adult and sane person. He cannot
be a minor or lunatic. Also, such person must be owner of subject matter of will. The age of
majority may have two angles:
(a) with respect to Islamic law and
(b) as per State law.
According to Islamic law a person's minority terminates at the age of fifteen years but
as per Majority Act, 1875 age of majority is eighteen years and this law prevails. However,
where guardian of a minor is appointed, his minority is terminated at the age of twenty-one
years. Some, particular instances and their legality are discussed as under:
Will of Minor
It is treated as void ab-initio unless he ratifies it on attaining majority.
Will of a Person Who is of Unsound Mind
It is invalid, even if later on he becomes a person of sound mind, unless he ratifies it
after becoming of sound mind.
Will of a Married Woman
It is always valid provided all other requisites are fulfilled.
 (ii) (‫صی لہ‬
ٰ ‫)مو‬Legatee and his Competency
Any person who is capable of holding property may be a legatee. So, age, sex &
religion are no bars to taking the bequest. However, he must be in existence at the time of
making the will. Some particular instances are as under:
Bequest to a Non-Muslim
It is valid.
Bequest to a Dead Person
It is invalid, so where legatee dies before testator, the will shall not take effect to that
extent.
Bequest in Favor of an Unborn Person
If such person is born within six months of the date of making the will, it shall be valid.

(b) Objects of Will

A will for a purpose which is lawful, charitable, religious or pious is always valid. While
a will for the purposes forbidden by Sharia is treated as void such as:
(i) Bequest for building Church, Mandir etc
(ii) Bequest to help tyrants
(iii) Bequest for translating religious books other than Quran
(iv) Bequest to build and ornamenting testator's grave
(v) Bequest for any illegal purpose

(c) Subject Matter of Will (‫وصی بہ‬

ٰ ‫)م‬
For a valid subject matter of will following rules are prescribed:
(i) Property must be capable of transferring
(ii) Property must be in existence at the time of death of testator
(iii) Testator must be owner of property and it must not belong to someone else
(iv) The property must be a legal one as per Shari‘ah i.e. it must comply with the
definition of mal.

(d) Formalities to Make a Will

Under pure Islamic law no formality is required to make a valid will. It may be oral,
inwriting or through signs. The only thing required is the clear and unambiguous intention of
the testator.

(e)Extent of Testamentary Powers

Islamic law limits the testamentary powers of a Muslim in two ways:
(i) Limitation as to persons in whose favour will can be made
(ii) Limitation as to property, subject matter of will
Under Islamic law a Muslim does not possess unrestricted powers to dispose of his in any
way through will. A bequest in favour of a legal heir is invalid as a legal heir gets his share in
any way through inheritance. Such question whether a legatee is legal heir is to be determined
at the time of death of testator, as a person who is an heir at the time of making the will may
not remain heir at the time of death of testator. However, this rule has an exception where other
legal heirs give consent to the will and forego their shares.
 On the other hand, Islam also restricts the extent of disposing property through will and a
Muslim cannot make a valid bequest of more than one third of his net assets after payment of
funeral charges and debts. However, this rule also has two exceptions i.e.
(a) where legal heirs consent to it and
(b) where testator has no legal heir.

The wasi(executor) and his powers

It is recommended that the testator write down his bequest in a deed and also appoint
an executor (wașī). The testator may do so when he is departing on a journey, or when he falls
ill, or undertaking some other venture with the condition that if he returns or recovers the
bequest will stand annulled. He may let the bequest stand if he so likes.
The testator may even appoint two persons to act as his executors, and if one of them
dies the qādī is to appoint another in his place. The two executors will act jointly on all
important matters, except for a limited number of things like the preparation of the body of the
testator for burial, purchasing necessities for his minor children, the payment of a debt, the
return of a deposit, the execution of the bequest regarding a specified property, and the
acceptance of a gift. In all other matters, the two persons are to act jointly. This is the view of
Abū Hanīfah and Muhammad. Abū Yūsuf said that each one of them can act independently as
if the other does not exist.
A non-Muslim or an enemy cannot be appointed as an executor, because the
appointment of a wași is in the nature of wilayah and such persons do not have wilyah over
Muslims. A Muslim woman can be an executor, and she can appoint an executor too.
A wașī has the right to appoint another wași, who will act as the executor of this wasi
and also of the first testator. Imām al-Shāfi'ī states that he cannot be an executor for the first
testator.
The authority of the executor extends to and includes the following acts:
1- To arrange the burial of the testator
2- To pay off his debts
3- To return the deposits of others if any and to claim all amounts due to the testator.
4- To execute the bequest of the testator whether it pertains to rituals or to the transfer of
property.
5- To distribute the remaining estate among the heirs of the testator. He must do so in the
presence of all heirs, especially those who are not minors, otherwise the distribution is
not valid.
6- To manage the affairs of the heirs if they are minor still such time that they attain
majority and manage their own affairs.
7- To preserve the property of the testator and, if necessary, employ the wealth of the
testator in beneficial investments till such time that it is distributed among the heirs.
8- To recover amounts that he may have spent on the minor heirs.
The above is not an exhaustive list.
 The wașī may accept his appointment even after the death of the testator, if he did not do
so when the testator was alive. Acceptance made prior to the death of the testator, cannot be
rejected after the death of the testator, as that will cause harm to the testator.

Revocation of Will
The testator has absolute powers to revoke his will at any time during his lifetime
either expressly or impliedly. Even he can revoke his former will through subsequent will
regarding same subject matter or he can deny as to validity of his will or the fact of making
the will and in such a case will shall be deemed to have no effect. Where legatee dies before
testator, the legacy lapses and forms part of testator's heritable property.

The Legal effects of the Bequest

Bequest is of two types:
1- Bequest in property. It’s further divided into two types: Corpus & Usufruct.
2- Bequest for an act related to property.
The legal effects of bequest for the corpus of the property.
The legal effects of wasiyyah for the corpus of the property
The legal effect of the wasiyyah on the corpus of the property is that the title in the
property passes to the legatee upon the death of the testator, up to one-third of the
property. The transfer of property in this case is similar to transfers in all other
transactions, like sale, gift, sadaqah, and the like. Consequently, the legatee acquires the
full right to dispose of the property and its utilization.
The transfer of title applies not only to the corpus itself but also to mesne profits, i.e.,
additions that may have taken place after the death of the testator, either within the corpus
or arising from it but separate from the corpus itself. The rule applies whether these
additions occurred prior to acceptance by the legatee or after it. After acceptance, it is as
if these additions occurred in the legatee's property. In the case of additions occurring
before acceptance, the rule is that ownership stands transferred from the time of the death
of the testator.
The corpus and the mesne profits are together subject to the one-third rule. It is as if
the additions existed at the time of the contract. There is a disagreement about applying
the one-third rule where the additions occur after acceptance but before the distribution of
the estate. Most jurists say that the one-third rule will apply on the basis that if part of the
estate were destroyed prior to distribution, the corpus itself would be subject to the one-
third rule.
Any mesne profits or additions that occurred before the death of the testator do not
belong to the legatee. Such mesne profits belong to the heirs."
The legal effects of wasiyyah for the usufruct of the property.
"A wasiyyah for the usufruct or benefits of specified property may be limited for a
specified period, or it may be unrestricted with respect to time. It can specify that the
benefits of the property are assigned to the legatee for a defined period, terminating either
 upon the legatee's death or passing to another legatee. If the property's corpus was
bequeathed to one legatee, ownership transfers to that legatee at the end of the specified
period of use. If the property is then bequeathed to another legatee, ownership passes
accordingly. If no other legatee is mentioned, ownership goes to the heirs of the testator.
The enjoyment of the usufruct is subject to certain restrictions:
(a) If the property is given for personal residence or personal use, the legatee cannot rent
or lease it to another. However, if the property is given for enjoying its rent or
revenue, this condition does not apply.
(b) In the case of movable property meant for personal use, the legatee cannot move it to
another town unless the legatee's family resides there.
(c) In the case of any increase in property, such as a cow giving birth to offspring meant
for utilization of the milk, the increase belongs to the heirs or the legatee for the
corpus, as the case may be."
The legal effects of waşiyyah for an act that entails expenditure or is related to
property
A wasiyyah can cover various acts, such as
(a) freeing a slave upon the testator's death,
(b) emancipating a slave after burial,
(c) allocating a specified amount for financial or charitable purposes, and
(d) stipulating certain obligations and supererogatory acts, like performing hajj on behalf
of the testator to draw closer to Allah. These acts involve property or expenditure. For
instance, if a slave is to be emancipated, the bequest applies to one-third of the estate. In
other cases, efforts are made to fulfill the testator's wishes, and heirs can contribute if
needed.

The Termination of the Waşiyyah (Bequest)

A wasiyyah can be annulled for the following reasons:
1. Revocation or Cancellation: The bequest can be revoked or canceled through ruju'
(revocation), and this essentially amounts to faskh (cancellation) as described earlier.
2. Testator's Permanent Insanity: If the testator becomes permanently and completely
insane, the wasiyyah is annulled. According to Abu Yusuf, this period is one month,
while according to Muhammad, it extends to one year.
3. Death of the Legatee: If the legatee dies before the testator, the wasiyyah is annulled.
4. Destruction of the Property: If the property bequeathed is destroyed, the wasiyyah is
annulled.

Case Laws
Will be shared later on.