MOHAMMEDAN WILL

My article on Hindu Will was an insight into what you needed to know about the Will. This article deals with "Mohammedan Will".

In Mohammedan Law a "WILL" is known as Wasiyatnama. It is a legal declaration of the intentions of a Mohammedan, regarding disposal of his property after his demise. The original "WILL" is in Arabic language which was later translated by some Mohammedan lawyers. It is reported that Mr. Charles Hamilton translated the original WILL from Persian language to English. The authority on Mohammedan WILL is Hedaya, which means guide. Shaikh Burhan-Ud-din-Ali composed the Hedaya.

Any Mohammedan of sound mind and who is not a minor can bequeath his property by WILL. A Mohammedan is deemed to be a major on completion of 15 years of age. Section 3 of the Indian Majority Act 1875 stipulates that a person shall be deemed to have attained majority when he shall have completed 18 years of age. However it was known that a Mohammedan who has completed 15 years of age before the Indian Majority Act 1875 came into effect is competent to make a valid WILL for bequest of his property. Unlike a Hindu WILL a Will made by a Mohammedan may be oral. In the case of a written WILL no particular form is prescribed. A written WILL is not mandatory. It can be a verbal declaration. What matters is that the intention of the testator (maker of the WILL) should be sufficiently established. Another contrast between a Hindu WILL and Mohammedan WILL is that in the case of the later a written WILL need not be signed. It need not be attested as well. However for the sake of ambiguity and to avoid disputes amongst the legal heirs in future it is advisable to get the WILL attested. A bequest made by a testator to any of his legal heirs through a written WILL is valid only if other heirs agree to the bequest after the death of the testator. The validity of the legal heir is determined at the time of execution of the WILL. In contrast a bequest made by a testator to others who are not legal heirs does not require the approval of legal heirs.

The property to be bequeathed must be in existence at the time of the testators death even though it may not have been in existence at the time of execution of the WILL. The property must be capable of being transferred. The position of the legatee (beneficiary of the WILL) is akin to that of the beneficiary under WAKF in as much as the corpus may be given to someone and the benefits accrued out of the same may be given to another. However there are certain limitations to the testamentary powers of the testator. The testator cannot dispose off more than one third of his property after meeting the debts and funeral expenses and this required the consent of the legal heirs. According to the Mohammedan law in order to be the beneficiary of the bequest, the legatee must be in existence at the time of the death of the testator. A bequest made to a person who is not in existence at the time of the death of the testator is not valid. However a bequest to a child in the womb at the time of death of the testator is valid provided the child is born within 6 months of the date of the WILL. A future bequest is not valid. In case the legatee predeceases the testator the bequest will lapse and the send bequest reverts to the testators estate. If the legatee expires without having any legal heirs then his legacy would pass on to the heirs of the testator.

A WILL executed by a Mohammedan after being proved may be admissible as evidence though it does not require to be probated. The estate of the testator after his demise rests in the Executor of the well provided be agrees to be the Executor from the date of death of the testator. In case the testator dies intestate (without making a WILL) letter of Administration is not required from the Jurisdictional Court to establish right over the property of the testator. However it is required for debts due to the estate of the testator as per Section 212 (2) of the Indian Succession Act.

The WILL can be revoked by the testator under the Mohammedan law. Revocation may be expressly or by implication. Express revocation of a WILL is made by writing or orally, whereas a implied revocation of a WILL is deemed to have been made when the testers does an act from which it infers that a revocation of the Will is established. A WILL can also be revoked by a subsequent WILL where by the testator bequeaths his bequeathed property to another.