According to Section 2 of the Indian Succession Act, 1925, by making a Will, a person can make disposition of his property. The Will comes into action only after the death of the testator. Wills made under the Muslim Law are different from the Wills governed by the Hindu Law or those made under the Indian Succession Act, 1925. The Muslim Will is often governed by the Shariat Law and additional religious rules and regulations mentioned in the Quran.
According to the Muslim Law, a Will made by a Muslim is known as “Wassiyat”. The executing person of a Wassiyat is called “testator” or “legator” and the individual getting the benefit of it is known as “testatrix” or “legatee”.
Although the Quran does not directly speak of any legal document such as Will, it still makes sure that the majority of the property of a deceased person should remain within the family, thus safeguarding the property rights of the legitimate heirs. A person can bequeath only 1/3 of his entire property to anyone of his choice. The consent of the legal heirs become mandatory if the Wassiyat or the Will bequeathed more than one-third of the estate. However, the exception to the rule is that a person who has no legal heir can bequeath the entire property.
Requirements of a Valid Will:
When we are discussing the legitimacy of a Will under Muslim Law in West Bengal and Kolkata, there are some conditions that make the Will worthy and competent for taking effect. The below-listed points must be fulfilled:
- The Will must be made by a capable legator.
- The legatee should be eligible to honour such endowment.
- The property mentioned in the Will must be bequeathable.
- The legator should have testamentary rights of the concerned property.
- Free consent of the legator and the legatee.
Eligibility for the Legator:
Under Muslim Law, for a Will to take effect there are some norms to be satisfied. Let’s take a look at those standards:
- The legator must be a Muslim for the Will to be considered authentic under Islamic Law. If the individual has married under the Special Marriage Act, 1954, his Wassiyat will be governed by the Indian Succession Act, 1925. Since there are two Muslim schools, the Wassiyat will be governed by the laws of the school to which the legator belongs at the time of execution of the Will. There are instances where the legator was a Muslim while executing the Will, but later he renounced Islam. Those Wills are valid as well because the legator was a Muslim while making that Will.
- The sanity of the legator when the Will is being made is necessary for the Will to take effect. According to Muslim Law, the legator must be in a “disposing mind” to understand his activities and the legal consequences of the same. After making the Will if the legator turns insane and remains so till death, the Will becomes void. If an insane legator makes a Will and regains his sanity then also the Will remains void. A Will created by an insane individual during his interval of sanity will be held valid only if he regains sanity within six months from the date of making the Will.
- The legator must be of legal age for the Will to be effective. According to the Indian Majority Act, 1875, the minimum age for a person to create a Will is 18 years. In case a minor ratifies a Will, it will remain suspended till the legator reaches the majority.
- According to both Shia and Sunni Law, the validity of a Will remains intact until the point of time when the legator tries to take his own life. If the legator is of Shia school and attempts to commit suicide before or after creating a Will, the document becomes void under the Shia Law because the stability of his mind becomes questionable. However, the Sunni Law gives validation to the Will made by a legator who committed suicide after making the Will.
- Any Will made under any negative influence will be considered as null and void. Free consent of the legator is a must for the Will to take effect.
Competence of the Legatee:
There are a few conditions that make a legatee competent to take the property made under Muslim Law.
- The legatee can be anyone irrespective of gender, religion, age, caste, and state of mind. But he must be alive at the time of the death of the legator. The legatee can be a charitable or religious institution as well.
- An unborn child in the mother’s womb is a legitimate legatee. According to the Sunni Law, the child must be born alive within 6 months from when the Will is made and within 10 months in the case of Shia Law.
- In general, if the legatee has murdered the legator then he can nottake benefit of the Will. However, under Shia Law, if the murder happens unintentionally, accidentally or by negligence then the legatee can still get the benefit of the Will.
- The legatee must wilfully accept the benefits of the Will. Upon declining the bequeathed property, the Will becomes invalid.
- If the Will is given jointly then it can lead to joint legatees. If the Will explicitly mentions the share divisions between multiple legatees, then the joint legatees will get a share accordingly. However, if the Will does not mention the division of shares then the joint legatees will get an equal share in the bequeathed property.
Procedures for Making the Will:
The Will can be executed either orally, through gestures or in writing. However, a written Will is easier to prove compared to others. Through Wills, a Muslim person in Kolkata and West Bengal can bequeath corporeal, incorporeal, movable or immovable properties. However, a valid Will requires that the legator must have rights to such property, and the property should also be transferable. Overall, the above-mentioned rules and guidelines can help with an overview of how Muslims in West Bengal and Kolkata can make Wills and settle disputes arising out of Wills. However, for in-depth analysis and legal help contact here or email [email protected] with your queries.