Wills or Wasiyat

Wills or bequest[s] or Wasiyat derive their authority and sanctity from the sacred texts of the Quran.

"It is prescribed to you when death approaches any one of you and that he is to leave any wealth behind, he should bequeath equitably to his parents and kindred." (Q. 2 :130) 

“And such of you as feel the approach of death and are to die and leave wives behind shall bequeath for their wives a year's maintenance without requiring them to quit their homes." (Q. 2 : 240) 

Wasiyat means the act of conferring a right in the substance or the usufruct [the legal right of using and enjoying the fruits or profits of something belonging to another] of a thing after death. It may be constituted by the use of any expression that sufficiently indicates the intention of the testator. If it is apparent that the intention of the testator is to make a disposition operative on his death, it will be regarded as a Wasiyat.

Wasiyat may be of anything useful thereof. It is not necessary that it should be mentioned by the testator that it would come into effect after his death. This is legally implied. 

According to Hanafi School, there are two ingredients of a Wasiyat. One is the disposition by the testator and the second is its acceptance by the legatee. This will arise only after the death of the testator. According to some jurists, acceptance is not an essential ingredient for the act is to come into effect after the death of the testator.

The Muhammadan Law does not insist that a Will should be in writing, and a nuncupative [not written oral instead] will, if forced, is as valid as a testamentary disposition in writing. 

A letter written by the testator containing direction[s] as to the disposition of his property to take effect after his death has been held to constitute a valid will.

A Will can be made by signs [if] a person cannot speak because of a mortal illness or is dumb, but can express his meanings by sign[s].

A Wasiyat may be conditional or contingent but when the contingency envisaged does not arise, the contingent will not be given effect to.

Capacity to make a Will

The testator must be:

(i) In the full possession of his senses at the time. A will made by an insane person is not valid. If he makes it at a time when he was in full senses but again relapses to insanity and that condition lasts for at least six months, the bequest will become invalid, otherwise not.

(ii) he most be [of the age of] major[ity].

(iii) he must not be indebted to an extent that his debt is equivalent in value to his whole property.

(iv) he must not be acting under compulsion or under influence or in jest.

(v) he must be a free person. 

Objects in whose favour a Will can be made

A bequest can be only to the extent of a third of the testator’s property but not to any further extent.

A bequest to any amount exceeding [a] third of the testator's property is not valid. In proof of this is the Hadith as reported by Abu Wakas: “In the year of the Conquest of Mecca, being taken so seriously ill that my life was despaired of, the Prophet of God came to pay me a visit of consolation. I told him that by the blessing of God [I had] a great estate but no heir except a daughter, I wish[ed] to know if I might dispose of it all by will. He replied, 'No' and when I went on asking if I might bequest two-thirds or one-half' he replied again in the negative, but when I asked,”If I do so to the extent of one-third, he answered, 'Yes, you can bequeath one-third of your property by will, and a third part to be disposed of by will is a great portion; and it is better that you should leave your heirs affluent than in a state of poverty which might oblige them to beg of others."

In the case of heirs consenting to it, a bequest of more than one-third of the property which by itself is not valid, becomes valid. According to all schools of Muhammadan Law, a bequest to any one of the heirs is not valid without the consent of the others. The Prophet had said, "God has allotted to every heir his particular right. And that a bequest to particular heirs is unjust." Under [the] Shariat it is advisable not to make [a] bequest if the heirs be poor and the particular portions to which they are entitled in inheritance are not going to enrich them. God has said in the Quran, “The exertion of generosity towards relations [is] more laudable than towards strangers."

Whether the person in whose favour the Will is made is an heir or not, must be determined not at the time of the Will but at the testator's death.

Where the Will is in favour of non-heirs or for a pious or charitable purpose, it is valid and operative only in respect of one-third of the testator's estate without the assent of the heirs and in respect of more then one-third with their consent.

A grandson whose father has died in the lifetime of the testator is a non-heir when he co-exists with another son of the grandfather; and a bequest to him not exceeding one-third of the property is valid. The consent may be given expressly, or indicated by unequivocal conduct such as signing the Will with a full understanding of its meaning without outside pressure or influence or allowing the legatee to enter into possession without objection.

Where a Will to a non-heir exceeds one-third of the testator's estate and some of the heirs consent whilst others do not, the excess will come out of the shares of the consenting heirs.

In order to be entitled to the bequest, the legatee or legatees must be either actually or presumptuously in existence at the time of the testator's death.

A bequest to a person not yet in existence at the testator's death is void, but a bequest may be made to a child in the womb, provided it is born within six months from the date of the Will. Like a gift, a bequest may be made by a Muslim in favour of a non-Muslim and vice versa.

A bequest to a person from whom the testator receives a mortal wound is invalid, whether the murderer be one of heirs, or a stranger or whether he may have wounded him wilfully or by misadventure, provided he be the actual perpetrator of the deed. This is in accordance with a Tradition: "There Is no legacy for a murderer." He deprives himself of the benefit of [the] Will just as a man in similar circumstances is excluded from [an] inheritance. If a legatee slays his testator, the bequest in his favour becomes void.

Bequests by insolvent persons is void

If a person is deeply involved in debt and bequeaths any legacies, the bequest is unlawful and of no effect. Debts have a preference to bequests, for [the] discharge of debt is obligatory while bequests are gratuitous and voluntary. However, if the creditors relinquish their claims, the obstacle is removed and the bequest becomes valid.

A bequest of 'a portion' of the estate is executed to the extent of the smallest portion inheritable from it.

A bequest of part of the estate undefined must be construed to apply to any part.

In the execution of bequests to sundry pious purposes, the ordained duties precede the voluntary. But if all the mentioned purposes are of equal importance, the arrangement of the testator must be followed.

Usufructuary Wills

If a person bequeaths the use of his house either for a definite or indefinite period, such [a] bequest is valid. In that case the house will be consigned to him if it does not exceed one-third of the property of the testator. This is not lawful for the usufructuary legatee [the one having the use or enjoyment of something to whom a legacy is bequeathed] to let it out on hire. If the bequest is for a limited term and the legatee dies before the expiration of the limited term, the article bequeathed in usufruct immediately reverts to the heirs of the testator. In a bequest of the use of an article to one and the substance of it to another, the legatee of usufruct is exclusively entitled to the use during his term. A bequest of the fruit of a garden implies the present fruits only, unless it is expressed in perpetuity.

Lapse of [a] Legacy

If the legatee does not survive the testator, the legacy will lapse and form a part of the estate of the testator. 

Revocation 

A Will is revocable. It may be revoked at any time even during the last illness of the testator. The revocation may be either express or implied. It is express when the testator revokes it in express terms. It is implied when the testator indicates by his conduct or subsequent acts that he does not intend to maintain the legacy like [an] addition to the subject of the bequest or extinction of the proprietary right of the testator.

Mere denial of [a] bequest does not amount to its retraction. If a testator denies a bequest and the legatee produces [a] witness in proof thereof, the bequest will be established. If a testator declares the Will he has made in favour of a particular person to be unlawful and usurious, this is not [a] retraction because its description as illegal or usurious is a plain proof that it exists, and until the testator annuls it, it will hold good.

If a testator should desire that [the] execution of his Will after his death may be suspended for some time, it is not revocation.

A bequest to one person is annulled by a subsequent bequest of the same thing to another person. But a will is not revoked by the marriage of the testator subsequent to its execution.

Executor

The testator may appoint any person to carry out the directions of the testator. He is called the executor. He may be a man or woman, a stranger, or a relative. The appointment may be for a specific purpose or may be general. If a testamentary disposition is invalid, the appointment of the executor would remain valid so far as the guardianship of minor children and their education are concerned.

It is the duty of the executor to pay the funeral expenses, the debts and the legacies, and to administer the estate generally.  He is empowered to collect [the] debts and other dues to the estate. [The] appointment to the office of an executor cannot be made without his consent but [once] an executor has accepted the office, he can neither resign nor be removed by [a] court without sufficient cause. The executor can bequeath his office to another. If more than one executor has been appointed, all must act jointly and if the office of one of them becomes vacant, the court will appoint a competent person in his place. 

The acts of one executor will not be void in the following cases viz., in payment of funeral expenses, in the purchase of necessaries for the children of the testator, in the acceptance of gifts made to the testator, in returning deposits with the testator, in payment of specified legacies and in the litigation of the rights of the testator.

If no executor has been appointed by the testator, the Court must appoint someone to give effect to the Will.

The powers of the Executor

A Mohammedan executor is not bound to take out [a] probate of the will under the Probate and Administration Act IV of 1881 in order to enable him to act. The Muhammadan Law gives him sufficient powers.

Hiba or Gift

Gifts are lawful, for the Prophet has said "Send ye presents (gifts) to each other for the increase of love".

Definition

The Muhammadan Law defines [the] hiba or gift as a transfer of a determinate [amount of] property without any exchange from one person to another, and accepted by or on behalf of the latter. (Hedaya, p. 482). Until acceptance, the gift has no operation. A further condition relating to it is that the donor should complete his intention by delivering possession of the property to the donee. [Un]til then, property remains entirely at the disposal of the donor and [up]on his death, it will descend to his heirs. If possession is given afterwards in pursuance of the gift, them need not be a renewal of the gift.

It is not necessary that actual physical possession should be given, [as] the law considers constructive possession to be sufficient. If the donor vacates possession in pursuance of the gift, though the donee may not take actual possession, the gift will be held to be perfected.

A gift may be made in writing or verbally. The Transfer of Property Act IV of 1882 is not attracted. The Privy Council in the case of Qamrunnisa Bibi v. Hussaini Bibi upheld a verbal gift when it appeared to be supported by all the attendant circumstances.

A gift of part of a thing, which is capable of division, is not valid unless the said part be divided and separated from the property of the donor.

A gift of an article implicated in another article is utterly invalid.

If the thing [that was given as a gift] is already in the hands of the donee in his capacity as a trustee, the gift is complete without formal seisin [the possession of land or chattels].

A gift by a father to his minor son of anything actually or virtually in his possession, is valid in virtue of the father's seisin.

[A] gift to an orphan is rendered valid by the seisin of his guardian. If a person makes a gift of a thing to an orphan and it be taken over in his behalf by the guardian, being either the executor appointed by his father or grand-father, the gift is valid because all these relatives have an authority over the orphan, as they stand in the place of his father. If a minor, endowed with reason and understanding should himself take possession of a thing given to him, it is valid. 

Capacity for making a gift

Like any other contract, the requisite conditions are [the age of] majority, understanding, freedom and ownership of the subject matter of the disposition. A person must be major, able to understand the nature of the act, be subject to no undue influence, coercion or duress and must be the owner of the property to be gifted.

Gift[s] with [the] intent to defraud creditors

In every gift there must be a bonafide intention on the part of the donor to transfer the property from the donors to the donee. A gift made with [the] intent to defraud the creditors of the donor is voidable at the option of the creditors (Sultan Miyan Vs. Ajiba Khatoon Bibi, 1932159 Cal. 557). Such [an] intention cannot, however, be inferred by the mere fact that the donor owed some debts at the time of the gift (Azim-un-Nisa Vs, State Mad. A. C. 455).

Scope of [the] gift

The idea of a gift is [the] transfer of the corpus of a thing to the donee. If the words of [the] gift indicate an intention of the donor to transfer his entire rights -- any words [thus] inferring limitations or conditions repugnant to full ownership on the part of the donee, [it] would be treated as surplusage. For instance, if the donor has said, 'I give you this thing for thy life,' Hanafi, Shafi’i and Hanabil jurists would treat it as a gift of the fee simple. But if the words relate only to the usufruct of the thing, it would be treated as a loan.

According to Maliki law, a life estate may be created by an inter vivos gift, and the donor may reserve the usufruct or use of a thing for himself, for life or for a limited period, and make a gift subject to it. According to Hanafi law, the donor making a hiba can stipulate that the donee shall maintain him as long as he lives or pay off his debts or give him something in exchange.

A conditional gift, however, must be distinguished from a gift with a condition. A conditional gift is one which is made contingent upon the occurrence of something. Thus if a woman says to her husband, "If I die, you are released from my dower". This could not be a valid gift. A gift with a condition attached to it is valid, but if the condition stipulates an exchange, the condition will fail.

Capacity to receive a gift

Any person can receive a gift if he or she is in existence at the time of the gift. An absolute gift to an unborn child is invalid, but if the child is born within six months of the date of gift, it will be valid on the presumption that the child was actually existing in the womb of the mother.

Extent of [the] donor's power

As distinguished from a Will, a gift may be made of the whole property of the donor, even to an heir. It can be made in favour of a stranger to the exclusion of his heir. The only [restriction] is the rule which invalidates death-bed gifts.

Gift[s] of actionable claims and incorporeal property

Actional claims incorporeal property, like debts, negotiable instruments, government promissory notes, zamindari rights, lessee rights and equity of redemption by a mortgagor, can form a valid subject of [a] gift. A gift of property in the occupation of a tenant is valid, for it implies the grant of the right to receive rent from the tenant or lessee. A gift of a property held adversely to a donor is not valid unless he obtains possession thereof and delivers it to the donee, or enables the donee to obtain possession. 

Gift of mushaa or undivided share In property

A gift of an undivided share (Mushaa) in property which is not capable of partition is valid. But a gift of such [a] share in a property which is capable of division, is irregular (fasid) but not void (batil). The gift can be rendered valid by [the] subsequent partition and delivery to the donee. 

Revocation of a gift

According to Hanafi law, [the] gift is revocable except under the following circumstances:

1. When the subject-matter of a gift has gone out of the possession of a donee by gift, sale or any other form of alienation by which the right of property is transferred.

2. When the gift is to any of the donor's ascendants or descendants, brothers or sisters or their children, uncle or aunt, The Prophet has said, "When a gift is made to prohibited relations, it must not be resumed."

3. When the gift is made during coverture to the husband of wife, of the donor as the case may be.

4. When the donor has died -- the doner's heirs [do] not have the power of revocation.

5. When the thing given has perished or is lost.

6. [A] gift given to charity or sadqa.

7. When the gift is for consideration.

8. When the subject-matter of the gift has altered in substance in the possession of the donee. It makes no difference to the irrevocability of the gift whether the increase be in consequence of an act of the donee or without such act and whether it has issued from the thing itself (such as [the] fruit on trees) or an accession to it (such as recreation by growth). Natural growth of the subject-matter of the gift debars the donor from revoking it. Transfer from one place to another, when it adds to the value and has occasioned [an] expense [it] is sufficient to prevent revocation.

Gifts for Consideration

Besides pure and simple hiba, a gift can be:

(i) Hiba-bil-ewaz i.e., a gift for consideration which is more in the nature of an exchange than a gift. 

(ii) A hiba-ba-shart-ul-ewaz or a grant made on the consideration that the donee should pay to the donor at some future time or periodically some determinate things in return to the gift.

When a gift is made with a stipulation (dun) for a return, it is called hiba-ba-shart-ul-ewaz. As in the case of a hiba (simple gift) so in the case of hiba-ba-shart-ul-ewaz, [the] delivery of possession is necessary to make the gift valid and the gift is also revocable. But the gift becomes irrevocable on delivery by the donee of the ewaz (return) to the donor.

Grant of a licence, resumable at the granter's option, to take and enjoy the usufruct of a thing is not gift but ‘Areeat. Prohibitions governing gifts do not extend to 'Areeats for ownership is not conveyed by the latter transaction.