Know the nuances of Hindu and Muslim wills, understand cultural and legal disparities, and assist in effective estate planning.
Overview:
Creating a Hindu Will differs significantly from a Muslim Will. A will, also known as a testament, is a legal declaration of a person’s wishes for their property after death. It designates recipients and can be modified by the testator.
Hindus, Sikhs, Buddhists, and Jains follow the Indian Succession Act, 1925. In contrast, Muslims adhere to Muslim Law for estate arrangement, bypassing the provisions of the Indian Succession Act. Understanding these distinctions is crucial for effective estate planning per the applicable legal frameworks.
Wills Under Muslim Law-
A Will, also known as a Testament or Wasiyat, is defined as a document through which a person allocates their property posthumously. Tyabji characterises a Will as the granting of property rights to take effect upon the testator’s death. Notably, a Will is distinctive in its posthumous activation and revocability.
Unlike other dispositions like sales or gifts, the testator retains full control over the bequeathed property during their lifetime. The legatee or beneficiary has no authority over the property, including its disposal or transfer, ensuring the testator’s power of enjoyment remains intact. The primary purpose of Wills, as per the Prophet’s tradition, is to provide for family and relatives when the law of inheritance may not adequately suffice.
When a Muslim dies, these four duties must be performed:
- Payment of their debts
- Payment of funeral expenses
- Execution of their Will
- Distribution of the estate to the rightful heirs according to Shariat.
Who Can Draft a Will Under Muslim Law?
In Muslim Law, both genders have the right to create a Will. For Pardanashin women, additional evidence may be required for probate validity. Minors can draft a Will but must wait until reaching the age of majority for it to be enforceable (15 years, not applicable in India). If a parent makes a Will on behalf of a non-major child, it is void. The testator must be mentally sound while creating the Will.
According to the Shafi School of Sunni Law, anyone capable of performing duties can create a valid Will. Individuals inhibited by insanity or loss of senses are ineligible. Minors are also restricted from making a valid Will.
Under Shia Law, minors are permitted to make a Will. However, if the testator has harmed themselves, the Will becomes invalid.
In Whose Favour Can Muslims Make a Will?
The legatee can be Muslim or Non-muslim, woman or man, major, minor, or even a child born within 6 months of the testator’s death. Making a Will in favour of institutions and Non-Muslim should not be hostile to Islam.
A Will in favour of Hindu society or Hindu temples will be invalid. Under Sunni law, if the legatee of the Will has murdered the testator either accidentally or intentionally, the Will won’t be valid. Even if the murderer was unaware of the fact that she/he is the legatee of the Will, that Will can not be considered valid.
Whereas under Shia Law, if the legatee accidentally kills the testator, then the legatee can still enjoy the benefits of the Will.
Rule of Abetment under Sunni Law:
If more than one-third of the asset of the deceased’s Will takes effect, the excess will be divided by inheritance. If more than one-third of the property is given to more than one legatee, all the beneficiaries may get a proportionally reduced share. This is the ‘Rule of Rateable Proportion’ in Sunni Law. The exception is when there is no heir, in which case the spouse will inherit the entire property.
Rule of Abetment under Shia Law:
This rule follows Chronological Priority. The bequests made earlier are prioritised over the later ones. But in case the later bequest is mentioned in the same Will, the earlier bequest will be revoked. In this Concurrent Wills, the one whose name appears first will get priority over the next. No legatee can enjoy the benefit if the name appears after one-third of the property.
Rule of Abetment Under Muslim Law:
If the legacy crosses the limit of one-third, then the first category will prevail over the second and so on. The Indian Registration Act in Sections 40 and 41 points out the registration of a Will. The testator can implicitly or explicitly revoke her/his Will at any time before his/her death verbally or in writing. This revocation is possible until the person breathes their last. The testator can make a subsequent Will declaring the disposal of the bequeathed asset by way of alienation.
Wills Under Hindu Law:
Section 57 of the Act-Application of Provisions of Part to a Class of Will made by Hindu, etc., deals with the territorial limits where only Wills made by Hindu, Buddhist, Sikh or Jain are considered. According to Section 30 of the Act, any Hindu can dispose of her/his property by Will, which is mentioned in the provisions of the Indian Succession Act, 1925. The act also clarifies that the interest of a male Hindu in Mitakshara coparcenary property shall be considered to be a property to be disposed of by him.
The recent status of section 30 mentions that daughters also are coparceners just like men and, by birth, own the same power in the joint family property. A document can become a conditional will after the testator’s death, and irrevocable documents are not termed a Will.
Difference between Wills Under Muslim Law And Hindu Law:
Under the Hindu Law, there is a concept of separate and ancestral property, while under Privileged Will in Muslim law, there is only the concept of a joint and single property when making a Will. Hindu Law is ruled by the Hindu Succession Act 1956, while Muslim Law is governed by the Muslim Shariat Law Act 1937.
Conclusion
Personal laws can vary across religions depending on customs and practices. Though the law of the land is the same for every Indian citizen, Hindu Wills are different from Muslim Wills, as they are based on different laws.
In cases of inter-religious marriages between Hindu-Muslims, people can choose what Will they would like to make, so suit their needs and benefit their heirs. if you have any queries reach out to Vakilsearch now.
Read More:-
- How You Can Create a Will online?
- Will Registration Process in India
- Is Registration of Will Compulsory in India?
