Q4. Explain the concept of Wills (Wasiyat). Discuss its requisites, the rules of revocation, and distinguish between a Will and a Gift. Highlight Shia-Sunni differences.
- Meaning of Will (Wasiyat)
A Will is the legal declaration of a Muslim’s intentions with respect to their property, which they desire to take effect after their death. It is an instrument that allows a person to alter the strict Quranic rules of intestate succession, but only to a limited extent.
- Requisites of a Valid Will
- Capacity: The testator must be a major (18 years) and of sound mind.
- Formality: A Muslim Will can be oral or written. If written, it does not require attestation by witnesses (unlike the Indian Succession Act).
- The Bequeathable Third Rule: A Muslim cannot bequeath more than 1/3rd of their total net assets (after paying funeral expenses and debts). This rule exists to protect the legal heirs from being disinherited.
- Revocation of Will
A Will is ambulatory by nature, meaning it can be revoked by the testator at any time before death.
- Express Revocation: By writing or oral declaration tearing/destroying the document.
- Implied Revocation: By an act showing a contrary intention (e.g., the testator bequeaths a house to A, but sells the house to B before dying).
- Distinction between Will (Wasiyat) and Gift (Hiba)
Feature | Gift (Hiba) | Will (Wasiyat) |
Operation | Operates Inter Vivos (between living persons). Takes effect immediately. | Operates Testamentary (takes effect only after the testator’s death). |
Extent of Property | A person can gift their entire (100%) property during their lifetime. | A person can only bequeath up to 1/3rd of their property. |
Revocability | Extremely difficult to revoke after delivery of possession. | Highly revocable at any time before death. |
- Shia vs. Sunni Differences in Wills
Area of Law | Sunni (Hanafi) Law | Shia (Ithna Ashari) Law |
Bequest to an Heir | Completely invalid unless the other heirs give their consent after the testator’s death. | Valid up to 1/3rd without the consent of other heirs. Consent is only needed for the excess. |
Timing of Consent | Heirs must give consent after the testator dies. | Heirs can give consent either before or after the testator dies. |
Suicide of Testator | If a person makes a Will and then commits suicide, the Will remains valid. | If a person does an act of suicide and then makes a Will, the Will is void. |