FAMILY LAW-I RESEARCH PROJECT

Submitted by: Submitted to:

Mulk Raj Patel Ms. Samreen Hussain
4th Semester (2013-18) Asst. Professor(Law)
Roll No. : 75
Section : A

Title
The title of the research project is “Will under personal laws”.

Introduction
Will is a legal declaration of the intention of a testator with respect to his property, which he desires to
be carried into effect after his death. It includes codicial and every writing making a voluntary
posthumous disposition of property. It is a testamentary instrument by which a person makes disposition
of his property, to take effect after his death, and which, in its own nature, is ambulatory and revocable
during his life. It is a secret and confidential document which the executant is never ordered to produce.

There are two essential characters of a will:-

i. It must be intended to come into effect after the death of the testator; and
ii. It must be revocable by the testator at any time.

It must also be noted that a document cannot be treated as a Will by a mere reading of the heading of it,
as laid down in Mandakini Naik v. G.K. Naik (2004 (3) ALT 829(AP HC)).

When a person dies without having made a Will, he is said to have died intestate. His property is then
inherited by his legal heirs in accordance with the law of inheritance applicable to them.1

1
Kumar, H.L., Make Your Will Yourself, Taj Press, New Delhi, 4th Ed., 2011, pp. 1-2.
Types of Wills:

Privileged Wills: A Privileged Will (Section 63 of the Indian Succession Act) is one which is made
by any soldier, airman or navy persons who is willing to dispose of his or her estate during the course of
his or her employment. This could refer to an expedition, engagement in actual warfare or a mariner
being at sea. A soldier does not include a civilian engineer employed by the army who has no military
status. A soldier while making an instrument of Will has to be a major not a minor, with the legal
definition of major being a person who is above the age of 18 years.

Features and Privileges Assigned to a Privileged Will:

1. A Will written wholly by hand of the testator need not be signed and/or attested.

2. If written wholly or in part by any person other than the testator it must be signed by the testator
but need not attested.

3. In case the Will has been written by any other person and it has not been signed by the testator, it
has to be proved that the Will was written on the testator’s direction or was recognised by him as
his Will.

4. An incomplete Will can nevertheless be deemed to be valid if some cause other than the
abandonment of the testamentary intentions expressed in the instrument.

5. If the testator has given instructions for preparing a Will but has died before the Will could be
prepared and executed, then such instructions are to be considered to constitute his Will,
although they may not have been put into writing in his presence, nor read over to him.

6. Where a Will is made by the testator by words of mouth, declaring his intention before two
witnesses present at the same time, such a Will shall become null and void at the expiration of
one month after the testator, being still alive, has ceased to be entitled to make a Privileged Will.

Unprivileged Will: An Unprivileged Will (Section 66 of the Indian Succession Act) is one which is
created by any testator who is not employed as a soldier, airman or mariner. The testator of an
Unprivileged Will is bound by the general requirements of a valid Will.
Conditional or Contingent Wills: A Will expressed to take effect in the happening or not happening of
some event is called a Contingent Will. A Conditional Will is based on certain conditions and if these
conditions become contrary to law, then the Will is not legally enforceable.As a result, person ‘A’
executes a Will to be operative for a particular year, i.e., if he dies within that year and ‘A’ does not die
that year. The Will becomes inoperative since ‘A’ has not expressed an intention that the Will survives
even intestate.

Joint Wills: A Joint Will is a testamentary instrument whereby two or more persons agree to make a
conjoint Will. It is intended to take effect after the death of both or more of the persons who drew up the
conjoint Will and is not enforceable during the life time of either. A Will executed by two or more
testators as a single document duly executed by each testator disposing of his separate properties or his
joint properties is a single Will. It operates on the death of each and is in effect for two or more Wills.
On the death of each testator, the legatee would become entitled to the properties of the testator who
dies.

Mutual Wills: A Will is mutual when two testators confer upon each other reciprocal benefits
constituting the other his legatee. In the event the legatees are distinct from the testators, the Will is not
mutual.

Duplicate Wills: When a testator makes a Will in duplicate, for the sake of safety, one to be kept by
him and the other to be deposited in the safe custody with a bank or executor or trustee it is referred to
as a Duplicate Will. If the testator destroys or damages the Will that is with him, it is considered a
revocation of both Wills.

Concurrent Wills: In the event the testator disposes of some of his properties in one country by one
Will and the other properties in another country by a separate Will these are regarded as Concurrent
Wills. In such cases both the Wills are regarded as valid irrespective of the ‘last Will’ theory.

Sham Wills: Since the intention of the testator is regarded as one of the essential condition of a valid
Will, if a document is deliberately executed with all due formalities purporting to be a Will, but if it can
be shown that the instrument was executed for some collateral object without any intention of the
testator to make it operative, the Will is regarded as a sham Will. It is considered as invalid in the eye of
law.
Holograph Wills: Wills which are written entirely by the hand of the testator are called Holograph
Wills.

Terminologies:

Codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and
is deemed to be a part of the Will.

Executor is the legal representative for all purposes of a deceased person (testator) and all the property
of a testator vests in him.

Legatee/Beneficiary is a person who inherits the property under a Will.

Probate is a copy of the Will, certified under the seal of a competent Court.

Testator is a person making a Will and executing it.

Personal Laws in India

The Indian Succession Act was enacted in 1925. The object of the Act was to consolidate the large
number of laws which were in existence at that time. Laws governing succession to Muslims and
Hindus were excluded from the purview of the Act. While consolidating the law in respect of
succession, two schemes, one relating to succession to property of persons like Indian Christians, Jews
and persons married under the Special Marriage Act, 1954 and the other relating to succession rights or
Parsis, were adopted.2

In India different religions like Hindu, Muslim, Christian and Parsi etc are governed by their own
personal law as Hindu law (Hindu law acts 1955-56), Muslim law (Muslim personal laws (Shariat)
application act 1937), Christian law, Parsi law (Parsi marriage and divorce act 1936), respectively.
Every religion follows their own personal laws in the family matters pertaining to marriage, adoption,
succession and so on3:

2
http://www.archive.india.gov.in/citizen/lawnorder.php?id=16
3
http://www.webindia123.com/law/family_law/
Hindu Law is considered to be one of the most ancient systems of law known to the world.
Hindu law is applicable to the personal and family matters of Hindus such as marriage, divorce,
maintenance, adoption, minority and guardianship, rights of a member of joint family, pious obligation
of sons for the debts of the father, alienation of family property, partition of joint family property and
succession. Custom or Usage is a very important source of Hindu Law.
Section 3 (a) of the Hindu Marriage Act 1955 defines this expression as:
“Custom or usage is a rule which has been continuously and uniformity observed for a long time among
the Hindus in any local area, tribe, community, group of family. The rule should be certain, should not
be unreasonable, should not be opposed to public policy and has not been discontinued by the family.

Legislation is the most important modern source of Hindu Law. Several enactments have been passed by
the Parliament to regulate marriage, adoption, maintenance etc among Hindus. Hindu Marriage Act,
1955 , The Hindu Succession Act 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu
Adoption and Maintenance Act 1956 are examples of such legislations. The four enactments of 1955
and 1956 expressly mention the persons to whom they are applicable.

Muslim Law is applicable only to Muslims. A person one who believes that there is only one God and
that Mohammed is his Prophet is a Muslim. Muslims consist of two sects namely Sunnis (governed by
Sunni Law) and Shia (governed by Shia Law). There are some difference between these laws but the
sources of these laws are one and same, namely the Holy Quaran, the Sunnat and the Ijma.
The Ouaran is the principal source of Muslim Law. Muslim personal law is founded on the divine
revelations embodied in the Quaran. The Holy Quaran is the very word of God. Quaran contains a
detailed code of conduct for the Muslims. Quaran is divided into 114 chapters and consists of about
6666 verses. About 200 verses of Quaran are concerned with legal principles and nearly about 80 verses
are concerned with marriage ,dower, divorce and Inheritance.
Muslim Law has been further supplemented and modified by state legislation and modern judicial
precedents of the High Courts and the Supreme court of India and also of the Privy Council. In India,
Muslims also governed in their personal matters like marriage, dower etc., by the various legislations
passed either by the Parliament or by State legislatures. Muslim law is governed according to the
provisions of Muslim personal laws (Shariat) application act 1937. Muslim law deals with matters such
as marriage, dower, divorce, maintenance, guardianship, inheritance, will, gift etc.

Will Under Various Personal Laws

1. Will under Hindu law4:

Who Can Make A Will

S.59 of Indian Succession Act provides that every person who is of sound mind and is not a minor can
make a Will.

Persons of Unsound Mind

As per S.59 of Indian Succession Act, the existence of a sound mind is a sine quo non for the validity of
the Will. Most of the Wills are not made by young persons who are fully fit but are made by persons
who are aged and bed ridden. Hence, law does not expect that the testator should be in a perfect state of
health, or that he should be able to give complicated instructions as to how his property was to be
distributed. A sound disposing mind implies sufficient capacity to deal with and understand the
disposition of property in his Will -

1) the testator must understand that he is giving away his property to one or more objects,

2) he must understand and recollect the extent of his property, and

3) he must also understand the persons and the extent of claims included as well as those who are
excluded from the Will. In Swifen v. Swifen it was held that the testator must retain a degree of
understanding to comprehend what he is doing, and have a volition or power of choice.

A minor who has not completed the age of 18 years is not capable of making Wills. The onus of proof
on determining whether the person was a minor at the time of making a Will is on the person who has

4
www.legalserviceindia.com/articles/will_hindu.htm
relied upon the Will. S.12 of the Indian Contract Act also provides that a minor is incompetent to
contract.

Other Persons Incapable Of Making A Will:

Explanation I to S.59 of ISA provides that a Hindu married woman is capable of disposing by Will only
that property which she can alienate during her lifetime. Explanation II provides that the persons who
are deaf, dumb or blind can prepare a Will if they are able to prove that they were aware of what they
were doing. Explanation III provides for persons who are mentally ill and insane. However subsequent
insanity does not make the Will invalid i.e. if a person makes a Will while he is of sound mind and then
subsequently becomes insane the Will is valid and is not rendered invalid by subsequent insanity.
Further a person of unsound mind can make a Will during his lucid interval. A Will made by a person
who is intoxicated or is suffering from any other illness, which renders him incapable of knowing what
he is doing, is invalid.

Though the burden of proof to prove that the Will was made out of free volition is on the person who
propounds the Will , a Will that has been proved to be duly signed and attested Will be presumed to
have been made by a person of sound mind, unless proved otherwise. Further, a bequest can be made to
an infant, an idiot, a lunatic or other disqualified person as it is not necessary that the legatee should be
capable of assenting it.

Revocability

S.62 of the Indian Succession Act deals with the characteristic of a Will being revocable or altered
anytime during the lifetime of the testator. S. 70 of ISA provides the manner in which it can be revoked.

A mere intention to revoke is not an effective revocation. The revocation of the Will should be in
writing and an express revocation clause would revoke all the prior Wills and codicils. If there is no
express clause to the effect then the former Will would become invalid to the extent of its inconsistency
with the latest Will, this is known as an implied revocation (however it should be shown that the
differences are irreconcilable). However if there is no inconsistency between the Wills then they cannot
be considered as two separate Wills but the two must be read together to indicate the testamentary
intention of the testator.
Revocation can also be made in writing through declaring an intention to revoke and the writing must be
signed by the testator and attested by two witnesses. The deed of revocation has to be executed in the
same way as the Will itself.

The Will maybe burnt or torn by the testator or by some other person in his presence and by his
direction with the intention of revoking the same. The burning of the Will must be actual and not
symbolic. The burning must destroy the Will atleast to the extent of his entirety. Further the Will need
not be torn into pieces. It would be sufficient if it is slightly torn with the intent of revocation.

The Will can be revoked expressly by another Will or codicil, by implied revocation, by some writing,
by burning or tearing or by destroying otherwise. Cancellation of a Will by drawing lines across it is not
a mode of revocation. Under the Hindu Law the Will is not revoked by marriage or by subsequent birth.

Alterations

S.71 of ISA is applicable to alterations if they are made after the execution of the Will but not before it.
The said section provides that any obliteration, interlineations or any other alteration in a Will made
after its execution is inoperative unless the alteration is accompanied by the signatures of the testator
and the attesting witnesses or it is accompanied by a memorandum signed by the testator and by the
attesting witnesses at the end of the Will or some other part referring to the alterations. the alterations if
executed as required by the section would be read as a part of the Will itself. However, if these
requirements are not fulfilled then the alterations would be considered to be invalid and the probate will
be issued omitting the alterations. The signatures of the testator and the attesting witnesses must be with
regards to the alteration and must be in proximity of the alteration. Further they should be in the Will
itself and not in a separate distinct paper. But if the obliteration is such that the words cannot be
deciphered then the Will would be considered as destroyed to that extent.

Wording of The Will

S.74 of ISA provides that a Will maybe made in any form and in any language. No technical words need
to be used in making a Will but if technical words are used it is presumed that they are in used in their
legal sense unless the context indicates otherwise. Any want of technical words or accuracy in grammar
is immaterial as long as the intention is clear.
Another general principle applied is that the Will is to be so read as to lead to a testacy and not intestacy
i.e if two constructions are possible then the construction that avoids instestacy should be followed.

Further there is another principle, which says that the construction that postpones the vesting of legacy
in the property disposed should be avoided. The intention of the testator should be decided after
construing the Will as a whole and not the clauses in isolation. In Gnanambal Ammal v. T. Raju Aiyar
the Supreme Court held that the cardinal maxim to be observed by the Court in construing a Will is the
intention of the testator. This intention is primarily to be gathered from the language of the document,
which is to be read as a whole.

The primary duty of the court is to determine the intention of the testator from the Will itself by reading
of the Will. The SC in Bhura v Kashi Ram held that a construction which would advance the intention
of the testator has be favoured and as far as possible effect is to be given to the testator’s intention unless
it is contrary to law. The court should put itself in the armchair of the testator. In Navneet Lal v. Gokul
& Ors the SC held that the court should consider the surrounding circumstances, the position of the
testator, his family relationships, the probability that he would use words in a particular sense. However
it also held that these factors are merely an aid in ascertaining the intention of the testator. The Court
cannot speculate what the testator might have intended to write. The Court can only interprete in
accordance with the express or implied intention of the testator expressed in the Will. It cannot recreate
or make a Will for the testator.

Execution of a Will

On the death of the testator, an executor of the Will (executor is the legal representative for all purposes
of a deceased person and all the property of a testator vests in him. Whereas a trustee becomes a legal
owner of the trust and his office and the property are blended together) or an heir of the deceased
testator can apply for probate. The court will ask the other heirs of the deceased if they have any
objections to the Will. If there are no objections, the court grants probate. A probate is a copy of a Will,
certified by the court. A probate is to be treated as conclusive evidence of the genuineness of a Will. It is
only after this that the Will comes into effect.

Signature of The Testator

S.63(a) of ISA provides that the testator shall sign or affix his mark. If the testator is unable to write his
signature then he may execute the Will by a mark and by doing so his hand maybe guided by another
person. In another words a thumb impression has been held as valid.

Restrictions on A Will

1. Transfer to unborn persons is invalid.

Where a bequest is made to a person by a particular description, and there is no person in existence at
the testator's death who answers that description, the bequest is void. S.113 of Indian Succession Act,
1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in another
person and the bequest must comprise of whole of the remaining interest of the testator. In Sopher v.
Administrator-General of Bengal a grandfather made the bequest to his grandson who was yet to be
born, by creating a prior interest in his son and daughter in law. The Court upheld the transfer to an
unborn person and the Court held that since the vested interest was transferred when the grandsons were
born and only the enjoyment of possession was postponed till they achieved the age of twenty one the
transfer was held to be valid.

In Girish Dutt v. Datadin5, the Will stated that the property was to be transferred to a female descendant
(who was unborn) only if the person did not have any male descendant. The Court held that since the
transfer of property was dependent on the condition that there has to be no male descendant, the transfer
of interest was limited and not absolute and thereby the transfer was void. For a transfer to a unborn
person to be held valid, absolute interest needs to be transferred and it cannot be a limited interest.

2. Transfer made to create perpetuity

S.114 of the Indian Succession Act, 1925 provides that no bequest is valid whereby the vesting of the
thing bequeathed may be delayed beyond the lifetime of one or more persons living at the testator's
death and the minority of some person who shall be in existence at the expiration of that period, and to
whom, if he attains full age, the thing bequeathed is to belong.

5
AIR 1934 Oudh 35
The rule against perpetuity provides that the property cannot be tied for an indefinite period. The
property cannot be transferred in an unending way. The rule is based on the considerations of public
policy since property cannot be made inalienable unless it is in the interest of the community. The rule
against perpetuity invalidates any bequest which delays vesting beyond the life or lives-in-being and the
minority of the donee who must be living at the close of the last life. Hence property can be transferred
to a unborn person who has to be born at the expiration of the interest created and the maximum
permissible remoteness is of 18 years i.e the age of minority in India.

In Stanely v. Leigh it was laid down that for the rule of perpetuity to be not applicable there has to be:

1) a transfer

2) an interest in an unborn person must be created

3) effective after the life time of one or more persons and during his minority

4) unborn person should be in existence at the expiration of the interest

3. Transfer to a class some of whom may come under above rules

S.115 of ISA provides that if a bequest is made to a class of persons with regard to some of whom it is
inoperative by reasons of the fact that the person is not in existence at the testator's death or to create
perpetuity, such bequest shall be void in regard to those persons only and not in regard to the whole
class.

A number of persons are said to be a class when they can be designated by some general name as
grandchildren, children and nephews. In Pearks v. Mosesley, it was defined gift to a class as a gift to all
those who shall come within a certain category or description defined by a general or collective formula
and who if they take at all are to take one divisible subject in certain proportionate shares.

4. Transfer to take effect on failure of prior Transfer

S.116 of ISA provides that where by reason of any of the rules contained in sections 113 and 114 and
bequest in favour of a person of a class of persons is void in regard to such person or the whole of such
class, any bequest contained in the same Will and intended to take effect after or upon failure of such
prior bequest is also void.

he principle of this section is based upon the presumed intention of the testator that the person entitled at
the subsequent limitation is not intended to be benefited except at the exhaustion of the prior limitation.
In Girish Dutt case one S gave property to B for life and after her death if there be any male descendants
whether born as son or daughter to them absolutely. In the absence of any issue, whether male or
female, living at the time of B’s death, the gifted property was to go to C. it was held that the gift in
favour of C was dependent upon the failure of the prior interest in the favour of daughter and hence the
gift in favour of C was also invalid. However alternative bequests are valid.

Invalid Wills

Wills invalid due to fraud, coercion or undue influence S.61 of ISA provides that a Will, or any part of
Will made, which has been caused by fraud or coercion, basically not by free will, will be void and the
Will would be set aside.

S.17 of the Indian Contract Act provides for fraud. Actual fraud can be committed through 1)
misrepresentation 2) concealment. Fraud in all cases implies a willful act on the part of anyone whereby,
another is sought to be deprived by illegal or inequitable means, of which he is entitled to. S.15 of
Indian Contract Act defines coercion. Any force or fear of death, or of bodily hurt or imprisonment
would invalidate a Will. In Ammi Razu v. Seshamma6, a man threatening to commit suicide induced his
wife and son to give him a release deed. It was held that even though suicide was not punishable by the
Indian Penal Code yet it was forbidden by law and hence the release deed must be set aside as having
been obtained by coercion.

Undue influence u/s.16 of Indian Contract Act is said to be exercised when the relations existing
between the two parties are such that one of the parties is in the position to dominate the will of the
other and uses that position to obtain an unfair advantage over the other. However neither fiduciary
relationship nor a dominating position would raise a presumption of undue influence in case of Wills as
all influences are not unlawful. Persuasion on the basis of affection or ties is lawful. The influence of a

6
ILR 41 Mad 33
person in fiduciary relationship would be lawful so long as the testator understands what he is doing.
Thus it can be said that a testator maybe led but cannot be driven.

Wills Void Due To Uncertainty

S.89 of ISA states that if the Will were uncertain as regards either to the object or subject of the Will
then it would be invalid. The Will may express some intention but if it is vague and not definite then it
will be void for the reason of uncertainty. The Will may depose of the property absurdly or irrationally
i.e the intention maybe irrational or unreasonable, but that does not make it uncertain. For uncertainty to
be proved it has to be proved that the intention declared by the testator in the Will is not clear as to what
is he giving or whom is he giving. Only if the uncertainty goes to the very root of the matter, then only
the Will has to be held void on the grounds of uncertainty.

Will Void Due To Impossibility Of Condition

S. 124 of ISA provides that a contingent legacy can take effect only on happening of that contingency. A
conditional Will is that Will which is dependent on the happening of a specific condition the non-
happening of which would make the Will inoperative. S.126 of ISA provides that a bequest upon an
impossible condition is void. The condition maybe condition precedent or condition subsequent.

Will void due to illegal or immoral condition

S.127 of ISA provides that a bequest, which is based upon illegal or immoral condition, is void. The
condition which is contrary, forbidden, or defeats any provision of law or is opposed to public policy,
then the bequest would be invalid. A condition absolutely restraining marriage would also make the
bequest void. S.138 of ISA provides that the direction provided in the Will as to the manner in which the
property bequeathed is to be enjoyed then the direction would be void though the Will would be valid.

2. Wills under Muslim Law

7

A Muslim may dispose off his entire property by gift inter vivos. But his testamentary power is limited
to the disposal of only one-third of his property. A Muslim is not allowed to bequeath more than a third

7
Diwan, Paras, Family law, Allahabad Law Agency, Haryana, 9th Ed., 2012, pp. 526-533.
of his property with a view to not affecting the shares of those who are enjoined by the Koran to inherit
the property of the deceased. He is also not allowed to bequeath anything to his heirs. It is because he is
allowed to bequeath one-third with a view to fulfilling his duty in respect of those who have served him,
who have shown devotion to him in his last moments, and who get nothing.
The testamentary succession laid down in the Succession Act, 1925 affect the Muslim Wills marginally.
The Muslim law of wills (wassiyyat) may be discussed under the following heads: (i) capacity to make a
will, (ii) formalities of making a will, (iii) legatees, (iv) construction of the bill, and (v) revocation of the
will.
Capacity to make a will
Every Muslim who is of sound mind and of the age of the majority has the capacity to make a will. The
age of majority is regulated by the Indian Majority Act, under which the age of majority is the
completion of 18th year in the ordinary cases, and completion of 21st year in cases where the guardian of
a minor is appointed under the Guardian and Wards Act. Also that a will of a minor can be ratified by
him on attaining the age of majority, but the will of the person of unsound mind cannot be ratified by
him on regaining sanity. Not merely this, the Muslim authorities hold that will made by a sane person
will become invalid if subsequently he becomes insane.

Formalities of a will
A will may be oral or written. When the will is in writing, no specific form is laid down. It may not even
be signed by the testator or attested by the witnesses.8 Similarly no form of declaration is necessary in
oral will. A will may even be made by gestures. Obviously the burden of establishing the same will be
very heavy, and hence it must be done with utmost precision with every circumstance of time and place.

Subject-matter of Will
Any type of property, immovable, corporeal or incorporeal which is capable of being transferred, may
form the subject-matter of the bequest. It is not necessary that the subject-matter of the will is in
existence when the will is made; it is sufficient if it will be in existence by the time of testator’s death.
The bequest may consist of the corpus or of the unsufruct.

Bequeathable one-third

8
Ramjilal v. Ahmed AIR 1952 MB 56
(i) All schools of Muslim Law (except the Ithana Ashari School) hold that the bequest of more
than one-third of the property is invalid unless consented by the heirs after the death of the
testator. Consent can be inferred from the conduct.
(i) According to the Ithana Ashari School, the consent of the heirs, to validate a bequeath of
more than one-third may even be given during the lifetime of the testator. The school also
allows bequeathing of more than one-third for the performance of obligatory religious duties
or by way of muzaribat or qeraz (both words have the same meaning, an enterprise in which
one invests his capital and another his labour with mutual participation in profit is known as
mazari bat or qeraz) on the terms of equal division of profits between the legatee and the
heirs.

(iii) Under a valid custom, a Muslim may be allowed to dispose of his entire property under his will.
The Shariat Act, 1937 does not apply to wills, and, therefore, a Muslim, who has the power to
dispose of his entire property under a will, can do so even now. (See Chapter I of this work for
details).

(iv) If a testator has no heirs, he may dispose of his entire property by a will. The right of the State to
take the property by escheat does not prevent an heirless testator from bequeathing his entire
property.

(v) A bequest of more than one-third may be validated by the consent of heirs. The rationale behind
this rule is that the limitation on the testator’s power of disposition is solely for the benefit of the
heirs, and if they want to forego the benefit, they are free to do so.

The consent of heirs may be express or implied. For instance, P bequeaths his entire property in
favour of X, a stranger. The will is attested by P’s two sons, A and B, who are the only heirs.

After P’s death X enters into possession of the property and recovers rents with the full knowledge
of A and B. These facts are sufficient to indicate the implied consent on the part of A and B. Consent
once given cannot be rescinded.

(vi) Where a testator dies leaving behind only a wife/husband as the sole heir and no blood relations,
then if the testator is a male, he can bequeath 5/6 of his estate, and if the testator is a female, she can
bequeath 2/3 of the estate. For instance, a Muslim woman makes a will under which she bequeaths
one-half of her properties to her husband. She dies leaving behind her husband and no blood
relation.
 Under Muslim law, bequests to the heir upto 1/3 of property are valid. Thus, the husband will take
1/3 of the estate (the bequeathable 1/3 under the will and 1/2 of the remaining as an heir. In all he
takes 2/3—1/3 under the will and 1/3 as an heir).

Ordinarily, the remaining 1/3 will go to the State by escheat, but on account of the bequest of 1/2 to
him (a woman can bequeath upto 2/3 under these circumstances), he again takes 1/6 of the
remaining 1/3 to complete the one-half estate that is bequeathed to him. In the result the husband
takes 1/3 as heir and 1/3 + 1/6, as a legatee, Le, in all he takes 5/6; the remaining 1/6 goes to the
State by escheat.

(vii) An heirless Muslim can bequest his entire property. A Muslim who has only his wife as an heir
can bequest the entire property minus the share of the wife.

(viii) If a Muslim had married or got his marriage registered under the Special Marriage Act, 1954,
then Muslim law of succession does not apply to him. He is governed by the Succession Act, 1925,
and, therefore, he can bequeath his entire property by a will.

A bequest in future and contingent bequeaths:

A bequest in future is void; so is a contingent bequest. When a Muslim makes a bequest with a
condition, then the condition is void, and the bequest is valid. But this should be read subject to what
has been said about life-estates in Chapter X.

Bequest for pious purposes:

A bequest may be made for pious purposes. Such bequests fall under three categories : (i) bequests for
Jaraiz, Le., for purposes expressly ordained by the Koran such as haj (pilgrimage), zakat (tithe) and
expiration, (ii) bequests for wajiwat, Le., which are themselves necessary and proper, though not
expressly ordained, such as sadaka, Jilrat, charity given on the day of breaking of the fast, and sacrifices,
and (iii) bequests for nawafil, or the bequests of purely voluntary nature, such as bequest for the poor,
for building mosque, a bridge or an inn.

The one-third rule applies to bequests for pious purposes also. The bequests for Jaraiz have priority over
the other two, and the bequests for Jaraiz, a bequest for haj has priority over zakat and expiration, and
zakat over expiation.

When a bequest violates the one-third rule, and some of the heirs consent to it, while others do not, the
bequest is payable out of the shares of the consenting heirs only.
Abatement of legacies:

When a testator bequeaths in violation of one-third rule and the heirs refuse to give consent, the
bequests, under the Hanafi law, abate rateably. Thus, if a Sunni Muslim bequeaths 1/2 of his estate to P
and 1/4 to Q, since the total exceeds one-third, the legacies will be rateably reduced at the ratio of 1/2:
1/4. Or, suppose a dies leaving behind a will under which he directs Rs. 100 to be paid to his relatives,
Rs. 100 to the Fakirs, and Rs. 40 for expiration of prayers that he missed. He leaves behind an estate
worth Rs. 216. The total amount of legacies comes of Rs. 240. While the bequeathable one-third is only
Rs. 72. Hence, the legacies must abate in the proportion of 72 to 240, Le; they will be reduced to 40, 30
and 12, respectively.

Under the Shia law, the rule is different. Bequest of prior date takes priority over those of later date
unless the later bequest was intended to revoke the earlier. For instance, a Shia bequeaths 1/3 of his
estate to A, 1/4 to В and 1/2 to C.

The heirs do not consent. The result will be that A will take 1/3, while В and С will not take anything.
Or, suppose a gives 1/12 to P, 1/4 to Q and 1/6 to R. Then P will take 1/12 and Q will take 1/4. Since
this completes the 1/3 estate, R will take nothing but if the same 1/3 successively bequeathed to A, В
and C, then it means that the last bequest is in revocation of the former two. Then С will take 1/3, and A
and В will take nothing

The Legatee

Under the Muslim a bequest to a person not in existence at the time of the testator’s death is void.
However, Muslim law permits bequests to be made to a child in the womb, provided that it is born
within six months of the testator’s death.

Construction of Muslim Will

The general rule governing the construction of wills is that a Muslim will is to be construed in
accordance with the rules of construction of the will laid down in Muslim law, the language used by the
testator and the surrounding circumstances.

It is also a general rule of construction of wills that unless a different intention appears, a will speaks
from the death of the testator, and the bequests, contained in it take effect accordingly.
It is a universal rule of construction of wills that the courts try to give effect, as far as possible, to the
intention of the testator. Where a testator used such ambiguous language that its construction is not
possible by giving usual meaning to the words used, then it is left to the heirs to give it whatever
interpretation they want.

Thus, where a testator lays down in his will that “something, or some trifle, should be given to P” or “I
leave a garment or a book to Q”, then heirs may give to P and Q whatever they like, or any garment,
such as a new coat or an old one or any book, a copy of the Koran or a book of songs.

Where a testator bequeaths an article by description without appropriating any specific article, and if the
testator does not own any such article at the time of his death, the bequest fails, unless the intention is to
bequeath the value of the article indicated. In such a case the article as described by the testator will be
purchased out of the assets and handed over to the legatee.

Revocation of Muslim Wills

A will may be revoked by a testator any time during his life. The testator has every right to repudiate a
will before it begins to operate. Revocation may either be of the whole bequest or only of a part of it.

A will may be revoked either expressly or impliedly. Implied revocation is by implication. Where a will
has been revoked by a testator, either expressly or impliedly, the legatee does not get the property
bequeathed to him.

Express Revocation:

Revocation of a will is express if the testator makes a statement that he has rescinded the will executed
by him. The statement of revocation may either be oral or in writing. But, it must be in clear and
unambiguous terms. Destruction of an unregistered will by tearing it off or, by burning it, is also an
express revocation as it clearly indicates the testator’s intention to nullify the bequest.

A testator may also revoke the will expressly by making a statement to that effect before a court of law.
Such a statement revokes the will even though the will has not been destroyed. However, a mere denial
by the testator of the validity of a bequest made by him, or of the fact of his having made it, does not
operate as revocation of the will.

Implied Revocation:
Revocation of a will may also be implied. The testator may not revoke the will expressly but his
intention to rescind the will is inferred from his conduct. Where a testator does something in respect of
the property bequeathed by him which is violative of his own rights as owner of that property, the
testator’s conduct suggests nothing but the revocation of that will. For example, when a testator destroys
or transfers the bequeathed property, he himself ceases to be the owner of that property and the will
becomes meaningless. According to Hedaya:

“If the testator performs, upon the article he had bequeathed, any act which, when performed on the
property of another, is the cause of terminating right of the proprietor such act is a retraction of the
bequest.”

It may be stated that where a testator extinguishes his own right in bequeathed property, the legatee’s
right to take that property after testator’s death, is also extinguished. For example, where a testator has
made a bequest of his goat but subsequently slaughters the same goat, the will of that goat is
automatically rescinded.

Similarly, a bequest of a piece of copper is impliedly revoked if the testator subsequently converts it into
a pot. Or, where a testator has made a will of a bag of wheat but subsequently converts it into flour, the
bequest of the bag of wheat is revoked.

The testator’s right over the bequeathed property is extinguished also where he transfers its ownership to
another person during his life. Therefore, where a testator sells or makes a gift of the same property of
which he had made a will, the will is impliedly revoked. It is to be noted that the revocation is valid
even if the testator re-purchases the same property or repudiates the gift.

Moreover, there is also an implied revocation of a will if the testator makes any substantial addition to
the bequeathed property in such a manner that the property cannot be given to the legatee without that
addition. For example, a testator makes a will of his plot of land.

Later-on the constructs a building on that plot. The bequest of the plot of land stands revoked because
the plot cannot be given in legacy without giving also the subsequent addition i.e. the building.

A subsequent will in favour of another legatee, of the same property which was the subject-matter of an
earlier will, also revokes the earlier will. Where a testator makes a will in favour of a legatee X and after
sometime makes another will of the same property to another legatee Y, the first will is automatically
revoked without any express declaration of revocation because, only the last will prevails

Marz-Ul-Maut (death-illness) Gifts and Acknowledgements under Muslim Law

The death-bed gifts are recognized in many systems of law, though to what extent and in what
circumstances such gifts can be made, the laws differ. Marz-ul-maut gifts of Muslim law derive their
rules from two branches of Muslim law, the law of gifts and the law of wills.

The law relating to the marz-ul-maut is a combination of rules derived from both the branches. Buckley,
L.J., aptly described as donatio morits causa, as a gift of amphibious nature; not exactly a gift, nor
exactly a legacy, but partaking the nature of both.

The different schools of Muslim law take divergent views on the marz-ul-maut gifts. The Malikis take
the view that the marz-ul-maut gifts are void. The Hanafis and the Shia hold that such gifts to the extent
of one-third are valid.

Marz-ul-maut:

A gift to be valid as marz-ul-maut gift must be made during marz-ul-maut, or death-illness. The most
valid definition of marz-ul-maut is that a malady which, it is highly probable, will issue fatally. A gift
must be deemed to be made during marz-ul-maut, if it was made “under pressure of the sense of the
imminence of death.

But where the malady is of long duration, such as consumption or albuninuria, and there is no
apprehension of death, the malady cannot be called marz-ul-maut. The Muslim law-givers hold the view
that if a disease continues for a period of more than one year then it cannot be called marz-ul-maut,
because, as the Durr-ul-Mukhtar puts it, when a person suffers from a malady which is ordinarily mortal
for over a year, it ceases to have any apprehensive influence on his mind as it has become part of his
nature.

However, even then the disease may become marz-ul-maut if it reaches a stage where the apprehension
of death is genuine or death is highly probable. When a person is in imminent fear of death whether
from disease or any other cause, so that in case of an illness the man is so broken by it as to be incapable
from conducting his ordinary avocations outside his house; for example, a fakih (jurist) from going to
the mosque, a tradesman to his shop, a woman from attending to her indoor occupation, it is marz-ul-
maut.

Another test is thus laid down: when the malady has become so severe as to make it permissible for the
sufferer to offer his prayers without standing up, it must be regarded as illness of death. Hectic fever,
haemorrhage, bilious, bloody swelling and fetid purgings have been considered to be marz-ul-maut by
Muslim authorities.

The Shia authorities are to the same effect. Sharaya-ul-Islam holds that every malady which is
accompanied by a genuine apprehension of death is marz-ul-maut. Thus, temporary fever, headache,
opthelmia and tubercle on tongue are not marz-ul-maut.

It is submitted that all those ailments, whether dangerous or not, which result in death, should be
regarded as marz-ul-maut maladies and those from which death does not ensure should not be regarded
as marz-ul-maut maladies.

A feeling, a sense of imminent death should be there. But an apprehension in the mind of an old man
that he may die suddenly at any time is not such a feeling of imminent death which may be called marz-
ul-maut.

It is now established that in order to constitute a marz-ul-maut gift, the following conditions must be
satisfied:

(i) The malady or illness must result in death,

(ii) The malady or illness must cause a reasonable or genuine apprehension of death in the mind of the
sufferer,

(iii) There should be some external indicia of a serious illness or malady, and

(iv) Delivery of possession must be given to the donee.

In every case, whether a malady or illness is marz-ul-maut or not, will depend upon its facts. It is an
essential ingredient of a marz-ul-maut gift that the donor must die of the malady from which he was
suffering at the time when he made the gift. What is required to be proved upon the preponderance of
probabilities is whether the gift was made by the ailing person while under the apprehension of the death
and further whether while so ailing he died. If he survives the malady whatever is the nature of malady-
the gift cannot be called the marz-ul-maut gift. In such an eventuality the only question will be whether
there has been a valid hiba. If it is valid as a hiba, then it will take effect as hiba.

The second requirement of a marz-ul-maut gift is that there must be an apprehension of death in the
mind of the donor, irrespective of the fact whether there is or there is none, in the mind of others
attending on him, including the physician. If there is an apprehension of death in the mind of the
sufferer, it is not necessary that he should be confined to bed.

It is a unique feature of marz-ul-maut gift that it must fulfil all the requirements of a valid hiba,
including the delivery of possession, and, at the same time, it is subject to all the restrictions of a will.
“It is, therefore, necessary to understand that a gift by a mariz (sufferer) is a contract and not a wasiyat,
and the right of disposition is restricted to a third on account of the right of heirs which attaches to the
property of the mariz.

And as it is an act of bounty is effective so far only as the law allows and that is a third. And being a
contractual disposition it is subject to the conditions relating to gifts, among them taking of possession
by the donee before the death of the donor”.

Thus, a marz-ul-maut gift cannot exceed one-third of the properties of the deceased. Under the Hanafi
law, a marz-ul-maut gift cannot be made to an heir, unless other heirs consent to it. Under the Ithana
Ashari law, it can be made to an heir also. But among the Ismailya Shias such a gift cannot be made to
an heir without the consent of other heirs.

Acknowledgement of Debts

Like Hindus, Muslims also emphasise the moral and legal obligation of a man to pay his debts.
According to a tradition, when the heir of a deceased Muslim was brought to the Prophet and on his
coming to know that the deceased had died in debt, he refused to conduct the funeral service, until
someone undertook to pay the debt of the deceased.

Under Muslim law, a person may acknowledge his liability or debt whether in health or ailing. The
Muslim authorities take the view that a declaration or admission of liability by a Muslim is binding not
only on the person, who makes the declaration or admission, but also on his heirs.
When the only proof of a debt or liability of the deceased is the death-bed acknowledgement of it, then
the Muslim law-givers rank it, in respect of priority, midway between other debts and legacies.

This means that other debts have priority over the death-bed acknowledgement. Such debts have priority
over legacies. Under a Hanafi law, a marz-ul-maut acknowledgement of debt or liability in favour of an
heir is no proof of debt or liability at all, and no effect can be given to it. Under the Ithana Ashari law,
such an acknowledgement is valid.

In death-illness acknowledgement of debts and liability, the danger of fictitious acknowledgements is

great and a duty is cast on the court that such acknowledgements should not become an engine of fraud
and fraudulent preference.

A divorce pronounced by person, who is suffering from a mortal malady, cannot deprive the wife of her
right of inheritance.
CONCLUSION
A Will is defined as "the legal declaration of the intention of the testator, with respect to his property,
which he desires to be carried into effect after his death." In other words, a Will or a Testament means a
document made by person whereby he disposes of his property, but such disposal comes into effect only
after the death of the testator.

The general law relating to the inheritance and succession can easily be referred to The Indian
Succession Act, 1925. Under this Act every Indian is entitled to equal shares on inheriting the property
on the death of a person. The exceptions are Hindus, Sikhs, Jains, Buddhists and Muslims as they are
governed under separate laws of succession. As for the persons of different faiths than Hinduism and
Mohammedan, the Indian Succession Act, 1925 applies. We can easily segregate the laws of non-
testamentary or intestate succession and inheritance as would be applicable to Hindus, Sikhs, Jains and
Buddhist and with Parsis, Christians and Jews with that of Muslims and with persons of inter faith
marriages.

A will is the legal declaration of the intention of the person making it, with respect to his property,
which intention he desires to be carried into effect after his death. Wills were wholly unknown to pure
Hindu law. But a long series of decisions (too numerous to be questioned now) have established the
testamentary powers of Hindus.

A Will under Mohammedan Law is called as Wasiyat, which means a moral exhortation or a declaration
in compliance with moral duty of every Muslim to make arrangements for the distribution of his estate
or property. The Mohammedan Law restricts a Muslim person to bequeath his whole property in a will
and allows him to bequeath 1/3rd of his estate by writing will, which will take effect after his death. A
will may be in the form of oral or written if the will is in writing need not be signed if signed need not
be attested. Acc to Shia Law if served bequests are made through a will, priority should be given to
determination by the order in which they are mentioned a bequest by way of will. A Will Can be made
by a person who is of sound mind, major and possessing a absolute title, in favour of a person who is
capable of holding property except unborn persons and heirs. The revocation of will is possible only if
the subsequent Will is made by the testator. A Muslim person who is allowed to bequeath 1/3rd of his
estate, he can exceed its limit on testamentary power of 1/3rd to 1/4th in case where the heirs give
consent or only heir is husband or wife.
Bibliography
Books:

 Desai, S.A., Mulla Principles of Hindu Law, Lexis Nexis Butterworths Wadhwa, Nagpur, 20th
Ed., 2007.
 M. Hidayatullah & Hidayatullah, Arshad, Mulla Principles of Mahomedan Law, Lexis Nexis
Butterworths Wadhwa, Nagpur, 23rd Ed., 2011.
 Diwan, Paras, Family law, Allahabad Law Agency, Haryana, 9th Ed., 2012.
 Kumar, H.L., Make Your Will Yourself, Taj Press, New Delhi, 4th Ed., 2011.

Web Resources:

 http://www.archive.india.gov.in/citizen/lawnorder.php?id=16
 http://www.webindia123.com/law/family_law/
 http://www.legalservicesindia.com/
 http://twocircles.net/book/export/html/135426
 http://www.legalindia.in/%E2%80%98will%E2%80%99-under-indian-law/