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    Essentials of Valid Will (Wasiyat) (Cont.)

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    kuku_29
    I. The document discusses the essential requirements of a valid will under Muslim law, including that the testator must own the subject property at the time of death, the property must be transferable, and any bequest must be within the limits imposed on testamentary powers. II. A Muslim testator can typically bequeath up to 1/3 of their estate through a will. This limit can be exceeded with the consent of legal heirs. Bequests to heirs also typically require consent from other heirs. III. There are restrictions both on the amount that can be willed and to whom property can be willed. Up to 1/3 of an estate can be willed to a non

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    Essentials of Valid Will (Wasiyat) (Cont.)

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    kuku_29
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    I. The document discusses the essential requirements of a valid will under Muslim law, including that the testator must own the subject property at the time of death, the property must be transferable, and any bequest must be within the limits imposed on testamentary powers. II. A Muslim testator can typically bequeath up to 1/3 of their estate through a will. This limit can be exceeded with the consent of legal heirs. Bequests to heirs also typically require consent from other heirs. III. There are restrictions both on the amount that can be willed and to whom property can be willed. Up to 1/3 of an estate can be willed to a non

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    I. The document discusses the essential requirements of a valid will under Muslim law, including that the testator must own the subject property at the time of death, the property must be transferable, and any bequest must be within the limits imposed on testamentary powers. II. A Muslim testator can typically bequeath up to 1/3 of their estate through a will. This limit can be exceeded with the consent of legal heirs. Bequests to heirs also typically require consent from other heirs. III. There are restrictions both on the amount that can be willed and to whom property can be willed. Up to 1/3 of an estate can be willed to a non

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    20 views4 pages

    Essentials of Valid Will (Wasiyat) (Cont.)

    Uploaded by

    kuku_29
    I. The document discusses the essential requirements of a valid will under Muslim law, including that the testator must own the subject property at the time of death, the property must be transferable, and any bequest must be within the limits imposed on testamentary powers. II. A Muslim testator can typically bequeath up to 1/3 of their estate through a will. This limit can be exceeded with the consent of legal heirs. Bequests to heirs also typically require consent from other heirs. III. There are restrictions both on the amount that can be willed and to whom property can be willed. Up to 1/3 of an estate can be willed to a non

    Copyright:

    © All Rights Reserved
    Download as DOCX, PDF, TXT or read online from Scribd
    Download as docx, pdf, or txt
    of 4

    ESSENTIALS OF VALID WILL (WASIYAT) (CONT.

    I. Testator’s competency (the person making will must be competent);


    (study materials already provided)
    II. Legatee’s competency ( the beneficiary must be competent to take
    bequest);
    III. Legacy (subject matter of will) must be valid or bequeathable property.
    IV. The bequest must be within the limits imposed on the testamentary power
    of Muslim.

    LEGACY (SUBJECT MATTER OF WILL) MUST BE BEQUEATHABLE


    PROPERTY

    Any property which is owned by the testator can be the subject matter of will
    (Legacy). Any type of property, corporeal or incorporeal, moveable or immovable,
    can constitute the subject matter of the Will. But a legator or testator has to take
    care of two things before making the will:

    I. He owns the subject matter of will (legacy) property at the time of his death.
    II. The property must be transferable.

    It not necessary that the testator must be the owner of the subject matter of will
    (legacy) property at the time when the will is created but it very much important
    that the testator must owns the subject matter of will (legacy) property at the time
    of his death. The reason behind this rule is very simple. A Will comes into
    operation after the death of the legator and the transfer of property to legatee takes
    place from the date of testator’s death and not from the date of execution.

    Testator is not allowed to bequest the property by making will for the purpose
    oppose to Islam

    It is possible to make a will in respect of the usufruct (munafi) or the benefits of


    the property. In such a case the legatee cannot claims right over the corpus (subject
    matter) or core of the property. Through the means of will testator can make gift in
    form of life interest also. Life interest implies that the benefits or the property will

    1
    go to the testator’s legal heirs after the legatee’s death. Thus the legatee is given
    right to enjoy the property or subject matter of will only for his lifetime. In this
    case the legatee has no absolute interest in the subject matter of will.

    THE BEQUEST MUST BE WITHIN THE LIMITS IMPOSED ON THE


    TESTAMENTARY POWER OF MUSLIM

    (Testamentary Powers & Limits)

    Muslim law imposes restriction as to the extent or amount of property which may
    be bequeathed and to whom it will be bequeathed. This restriction is not present in
    case of Hindu law. A Hindu may give away his or her whole property by way will.
    The restriction imposed is only for the will or wasiyat. In case of gift or hiba a
    Muslim has power to make gift or hiba of his or her whole property.

    There are two types of restriction on the exercise of testamentary power under
    Muslim Law:

    I. Restriction in respect to the extent of bequeathable property.


    II. Restriction in respect to the legatees to whom the property is given.

    RESTRICTION IN RESPECT TO THE EXTENT OF BEQUEATHABLE


    PROPERTY

    The Muslim testator can bequeath 1/3 rd of his property which will remain with him
    after:

    i. Payment of funeral charges


    ii. Payment of debts due

    This 1/3rd (One –third) property is called as bequeathable one third property for all
    purposes. Even in case the life interest has been bequeathed, it cannot be in excess
    of the one-third of the estate1.

    There is an exception to it and that is if the heirs has given their consent for
    bequeath of more than one third of property than the testator can bequeath more
    than one-third of property.
    1
    Siddiq Ahmed vs. Vilayat Ahmad, AIR 1952 ALL 1

    2
    CONSENT OF TESTATOR’S HEIRS

    Any bequest exceeding the limit of one-third will not come into effect unless the
    heirs of the legator give their consent to it . The purpose of the limitation of one
    third bequeathable property is to protect the rights & interest of the legal heirs
    which may be adversely affected in case the testator make will of his whole
    property. Therefore the will of more than one third of property by the testator is
    absolutely valid when the legal heirs of the testator themselves consented to it.

    For the valid consent the following rules has to be followed:

    i. Consent must be obtained after the death of the testator.


    ii. Consent of those heirs needed who are the heirs at the time of demise of
    the testator.
    iii. Consent must be free.
    iv. Implied or express consent.
    v. Consent given is irrevocable.
    vi. The heirs can give consent only in respect to their own shares.

    RESTRICTION IN RESPECT TO THE LEGATEES TO WHOM THE


    PROPERTY IS GIVEN

    The legatee can be a stranger (non heir), the heir or jointly stranger and an heir.

    BEQUEST TO A STRANGER (NON HEIR)

    A testator can bequeath only one third of his property in favour of the legatee. In
    case the legatee is a stranger (non heir) with the consent of the legal heirs bequest
    of more than one third of the property can be made.

    BEQUEST TO THE HEIR

    The restriction in respect of legatee comes into action only where the legatee is one
    of the heirs of the legator. Whether the property bequeathed is one-third or less but
    it is in favour of one of the heir, the consent of the other legal heirs of the legator is
    a dominant factor in order to establish a valid Will. The ground of this rule is the
    heir gets double advantage:

    3
    I. He gets property under a will.
    II. He will inherit as per the rules of inheritance too as an heir.
    But under the Shia Law if the bequest is of less than 1/3 rd of property in favour of
    heir the consent of other heirs is not required and no distinction between bequest to
    an heir or non heir. The legal heir is one who is entitled to inherit the property of
    testator upon his death.

    BEQUEST MADE JOINTLY TO STRANGER AND AN HEIR

    Under Sunni law, a will with an heir and non heir as a legatee’s is dealt with
    simple rules. The part of will dealing with the heirs needs the consent of other
    heirs. The part dealing with the stranger is inherently valid if the property given is
    under 1/3rd of the property else the consent of the heirs is needed.

    Shia Law makes no difference between heir and non heir. Both will inherit up to
    1/3rd without consent but in case above the limit the consent of heirs is needed.

    [NOTE-TO BE CONTINUED)

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