The law on Muslim wills is different from the law governing wills made by Hindus or those made under Indian Succession Act, 1925. This is because, under Muslim Law, testamentary disposition of property is considered to be divine in nature and draws on the Quran.
The Muslim will is not governed by the Indian Succession Act, 1925. The Muslim personal laws in India, or the Shariat law, decrees certain rules and regulations and ways in which an individual can dispose off his/her property. To explain this further, let us understand some of the essential points of Muslim Law and how a Muslim will can be made in adherence to the rules set by the law.
Who Can Make a Will?
Any person, who is 18 years of age or above, and is of sound mind, is eligible to make their will, according to Shariat law.
How can you make your will?
The Muslim will can be made either orally or with the use of pen and paper. There are no specific instructions as to how or what to write in a will. However, one needs to remember that the instructions left in the document should be clear and concise, and legible, to ensure it is followed after their death.
Muslim Will: The fractions involved
According to the Shariat law, a person can only leave one-third of their property to anyone they wish. The remaining two-thirds will, by law, go to their heir or heirs, equally shared between them.
For example, if an individual has Rs. 3.3 lakh (or an asset worth the amount), and he owes someone Rs. 10,000/. With the funeral expenses added to it, say, Rs. 20,000, he can only leave the one third of 3 lakh (Rs. 1 lakh) in his will to someone other than his heir. The remaining Rs. 2 lakh must go to his heirs.
Muslim Will: Heirs
Now, this is in case the person has more than one heir, and would like to leave an asset or property to just one of them. Although he can make a will asserting the fact that heir 1 will receive the asset, it will not be valid unless, after his death, heir 2 is willing to sign over the rights to heir 1.
However, one can always leave the one-third of their asset to anyone (and even heir 1), since it is acceptable, and does not require anybody’s consent.
Leaving properties to an unborn child
Muslim law does not allow a property to be bequeathed to an unborn child. However, in case the mother is pregnant with the child, and is born within six months of the death of the person making the will, the child has all rights to inherit it.
Other considerations that are induced by the Muslim Law include:
a.A person can bequeath a property, even if he does not possess it at the time of writing the will, but has it in his possession at the time of death. (If not, of course, the will becomes null and void).
b.An individual cannot lay any conditions or requests on the bequeaths. The bequests have to be unconditional.
c.However, one can make an alternative bequest, stating that in case a person (the heir) is not alive, another heir (heir-2) will get his assets.
Cancellation of a Muslim will
Muslim law decrees that a person can cancel the will at his convenience without giving any reasons, anytime before his death.
Which will is valid?
Another way of cancelling the will is to bequeath the property to someone other than the heir who was mentioned in the first will. The last will that an individual makes becomes his final will, and will be taken into account at the time of death.
Execution of an Islamic will
At the time of making the will, an individual needs to pick the persons who might execute his will. The request is taken into account at the time of disposal of assets. The person picked as an executor of the will has the right to dispose off the assets as specified in the will.