Meaning And Making of a Will/Wasiyat and its ingredients under Muslim Law
Prior to the devolution of the estate of the deceased who are subject to Islamic laws, it must be satisfied that his funeral expenses and debts are fully paid.
Only one-third of the estate of a deceased person who in his lifetime is subject to the Islamic laws can be disposed of by a will, the remainder being two-thirds shall be distributed among his heirs.
The limitation imposed on the testator who is subject to Islamic law in the disposition of his estate by a Will does not apply where he is exercising the alternative mode of disposition of estate which is an inter vivos disposition. A situation where in his lifetime he makes a gift of a part of his estate or the entire estate.
The Holy Prophet, Mohammed (SAW) had in his teachings on inheritance and succession admonished that testamentary powers should not be wielded in a matter to hurt the rightful heirs of the testator.
Wills under the Islamic law traced its basis and guidelines from the holy Koran (Quran), therefore, the making of a Will is a divine mandate and the Will itself ought to be made with the purest of heart. It affords the testator the opportunity to make provisions for his heirs and dependents. It is also a way of fending for the poor and rewarding deserving friends and servants.
MEANING OF WILL
A Will is a legally enforceable instrument which is revocable in the lifetime of the maker, where he states how his estate will be distributed upon his demise. It is the transfer of an interest in a property by an owner which shall take effect on his death. See also the definition proffered by Section 2 of the India Succession Act.
The maker of a Will as earlier highlighted is called a Testator (Testatrix for females) or “musi” and the person who will benefit from the Will is called the Beneficiary/Legatee or “musiliah”. The executors of a will are persons appointed in the will to enforce the will and they are called “Wasi”.
ESSENTIAL INGREDIENTS OF A WILL UNDER THE ISLAMIC LAW.
- The Testator must possess the full capacity to make a Will.
- For a Will to be valid the maker must be an adult under the law and of a sound disposing mind.
- The property being disposed of by a will must be the property of the testator before his demise.
- The beneficiary must not be under any limitation that is capable of making him unable to receive under the Will.
- There must be an express or implied acceptance of the bequeathed property by the beneficiary.
- A bequest made to a person who is not an heir or a Muslim is valid even with the affirmation of the heirs of the testator unless such bequest is in excess of one-third of the estate of the Testator. Unless a contrary intention is expressed, a bequest made to more than one beneficiary shall be held in equal proportion by the beneficiaries.
- Where a bequest is made to two (2) beneficiaries and one (1) dies before taking the bequest, the surviving beneficiary shall take the entire property.
- The consent of other heirs is mandatory for a bequest made to an heir to be valid even where the bequest is within one-third of the estate.
- Under by a release from the creditors, the bequest made by a testator who is in debt is not valid to the extent of the debt.
- Once the funeral cost is defrayed, a testator can validly dispose of the entirety of his estate by will where he does not have an heir.
- A bequest made in favour of an unborn child that did not proceed from the womb within six (6) months is void.
FORMALITIES TO BE OBSERVED IN THE MAKING OF A WILL
Wills under the Islamic laws are not subject to strict formalities unlike the making of a Will under the conventional laws regulating the making of Wills example is the Wills Act of 1837 which was extended to former colonies of Great Britain as a Statute of General Application.
Wills under the Islamic law may be oral or reduced into writing what is relevant is the unequivocal intendment of the maker of the Will. The courts had upheld a Will which was in writing but not signed or attested to as validly made. The case of Ramjilal v. Ahmed AIR 1952 MB 56 is instructive on the aforementioned principle guiding the formality of a will under the Islamic law.
In fact, the court in what may be referred to extreme scenarios upheld a letter and nodding of the head as a valid bequest. In any case, where a will is not formally made, the evidential burden is wholly on the person seeking to establish the making of a Will to prove that a Will was made.
SUBJECT MATTER OF A WILL
Any form of property i.e a movable or immovable property and even chooses in action can be subject of testamentary disposition. What is material to the making of a Will is that the property must be in existence and the requisite title vested in the Testator at the time of making the Will.
There are two (2) operative circumstances that a bequest must be mirrored in other determine whether it is validly made. These circumstances are:
- The beneficiary to whom the bequest is made.
- The status of the property sought to be bequeathed.
- Bequests made to an Heir: While the Shia Sect in Islam permits a Testator to make a disposition of his estate to an Heir without the consent of other Heirs provided the bequest does not exceed one-third of the entire estate of the Testator.
The Sunni Sect in Islam has a different approach all disposition made to an Heir must be with the consent of other Heirs otherwise such disposition will be invalid, consequently the bequest will fall to residuary of the entire estate.
- A bequest made to the Testator’s Murderer: The law appears to be universal that the law shall not permit a person to reap the fruits of his crime especially where the crime was intentionally committed.
The Sunni Sect, a person who causes the death of the testator cannot benefit or inherit from his estate. It is immaterial whether the death was intended or not. But this principle is only applicable to the Shia Sect where it is shown that the murderer seeking to benefit from the estate of the Testator intended the death of the Testator.
- Bequest to an unborn child: While the Shia Sect in Islam permits the duration of ten (10) months, a bequest made too an unborn child shall be invalid unless the child was born within six (6) months of the Will.
One-third of the property: As a central principle, the entire Islamic sect to the exclusion of Ithana Ashari prohibits the right of a testator from bequeathing more than one-third of his estate.
However, where the Heirs consent to such bequest by the Testator it shall be valid. The estate must be known at the time of bequest and the title fully vested in the Testator for the bequest to be valid.
Unless a testator expressed a contrary intention in the Will, if a beneficiary predeceases him, the bequest made in favour of the deceased beneficiary shall fall to the residuary estate of the Testator except in the case of two (2) beneficiaries, the surviving beneficiary shall become the sole beneficiary of the property under the will.
THE REVOCABILITY OF A WILL
The right to revoke a will is a personal right which can be solely exercised by the testator and all the schools of thought in Islam and the conventional laws accords recognition to this right of a testator. The act of revocation can be express or implied.
- Express Revocation: This can be an oral or written declaration made by the testator.
- Implied Revocation: In this scenario, the conduct of the testator is to be inquired into to ascertain whether he has revoked the will or the any of the disposition in it.
In both instance of revocation above the operative principle is that the Testator must exhibit animus revocandi which is the Latin maxim for the intention to revoke which the testator must demonstrate.
Where there is a form of sickness a person is suffering from he can make disposition of his property provided there is a serious apprehension about his death. This is akin to the English doctrine Donatio Mortis Causa, gifts or bequests made in contemplated of death.
Notwithstanding its recognition under the Islamic law, the bequest in this circumstance must not exceed one-third of the property of the testator.
Where the testator intends to make a gift of his property for the purpose of advancing the cause of humanity through Islam (Wakf) such wakf must not exceed one-third of his estate. Again the bequest must be with the consent of his heirs if the beneficiary is an heir.
ACKNOWLEDGMENT OF DEBT
It is a known and commendable practice under Islam for a person to acknowledge his indebtedness in his lifetime. Where such a declaration or acknowledgment is made, the Testator and his Heirs are liable to the creditors. This obviously is the basis of offsetting the indebtedness of a deceased-testator before the beneficiary can claim from the will.
The concept of a Will under the Islamic law as discussed above is an extensive topic which cannot be fully discussed as there are other schools of thought and divergent views pertaining to the making of will generally and under Islam.
While extolling the relevance of making a will generally and recognition of same in the Islamic faith, it is observed that the Koran is the foundation and guideline of making a will as well as the distribution of the estate in the event of intestacy.
However, there is need to set some accepted standard pertaining to the formality of a will in other to be able to easily and speedily prove the existence or the extent of a Will as oral evidence in the case of an oral will is fraught with the obvious danger that it be easily denied by a party who is not satisfied with the bequest made to him.