Will
shaik. Muneer Basha
(Querist) 21 February 2012
This query is : Resolved
what are the ingredients of a valid WILL ?
is a will created by muslims valid ? because i come to know that WILL relating to immovable property among the muslims is not valid because sunni law prohibits it, is it so ?
a mother has created will about her self aquired property in favour of her 2 younger sons without consent of other is it valid?
Raj Kumar Makkad
(Expert) 21 February 2012
To make a valid will as per Hindu law, it has to be signed by the testator (the person who is writing the will) in his full conscience and the same has to be executed by two witness who has seen the testator execute the will. Registration of a will does not increase the sanctity of the will and it has to be proved in the court of law that the will so executed is valid and legal. You can prove the genuinity of the will by sending the same to the hand writing expert. Yes, if the process of registration is fraught in illegality, the same can be challenged in the court of law
Essentials/Requisites of will: - A will to be valid, the following conditions are to be satisfied.
1. Capacity./Competence of Testator;
2. Competence of Legatee;
3. Subject Matter:
4. Testamentary Capacity.
1. Capacity of Testator:-- According to Muslim Law, any person, who is a major and is of sound mind can make a will. However, a minor can make a will subject to ratification on attaining majority. According to Muslim Law, the age of Majority is 15 years, but it is not applicable to the wills in India.
2. Competence of Legatee:-- Any person having capacity to hold the property can be a legatee. The Legatee may be a Muslim or a Non-Muslim. man or woman a major or a minor or even a child in the womb provided the child is born within 6 months of the death of the testator.
3. Subject flatter:- A Muslim can bequeath any property movable or immovable, corporeal or incorporeal, which must be in existence and transferable at the time of testator's death.
4. Testamentary Capacity:- A Muslim cannot dispose of by will more than 1%3 of the net assets after allowing (meeting) for the debts and funeral expenses of the testator (under both Hanafi Law and Shia Law). The remaining 2/3 share should be made available for distribution amongst the heirs. Even for bequeathing the 1/3rd share, the Muslim has to obtain the consent of the other heirs. Relevant Case on this point is: GULAM MD.vs. GULAM IIUSSAIN, AIR 1932 PC 81 ... Held in this case that, bequest in favour of heirs without the consent of other heirs is invalid.
An heirless Muslim can bequeath his entire property. In case, his wife, is the only heir, he can bequeath all his properties minus the share of his wife (as per Koranic table).
Bequeathable One-third:-- It means a third of the estate of the testator as is left after the payment of the funeral expenses, other charges and debts of the deceased (testator). All schools of Muslim Law except the Ithana Ashari School lay down that bequest of more than one third unless consented to by the heirs is invalid or a custom or usage so permits.
Formalities of Wills:-- Muslim law requires no specific formalities for creation of a will. It may be made in writing or oral or even by gestures. Though it is in writing, it need not be signed by the testator and attested by the witnesses (Ramjilal vs. Ahmed, AIR 1952 MP 56). It is necessary that the intention of the testator should be clear and unequivocal.
Construction of Will:- A Muslim will is to be construed in accordance with the rules of construction of the will as laid down in Muslim Law. Will is a document created by any person during his life time, which operates after his death. The contents of the will arc to be implemented to fulfil the intention or desire of the testator after his death. Sometimes, the contents may not be clear. In such a case, it may be interpreted as per the option of the heirs.
For instance, if the testator, to his will, bequeaths one house to heir A and the other for heir B without any specification. Then, the heirs have to make necessary arrangement.
Revocation of Will:- A Muslim will or any part thereof may he revoked by the testator at any time before his death. The revocation may be express (oral or in writing) or implied. A will may be expressly revoked by tearing it off or by burning it. Any act, which results in the extinction of the subject matter or proprietary rights of the testator will impliedly revoke the will. For instance, if the testator transfers the same property by sale or gift subsequently to another. it amounts to implied revocation.
DEATH - BED - GIFT : (MARZ-UL-MIAUT)
(Short Notes)
When a person creates/makes a gift out of an apprehension (fear) of imminent death and dies later, it is called "Death-Bed-Gift". In other words, if a person makes a gift during illness and dies later, it is called Death-Bed-Gift or Matz-UI-Maut. It is subject to two restrictions: (i) disqualification of heir; and (ii) property disposed of should not exceed 1 /3 of the net assets. These restrictions may he relaxed with the consent of the heirs.
The Death-Bed-Gift is valid only when the donor dies of illness during which the gill was made.
Essentials of Death-Bed-Gift (Marz-U1-Maut):
I . There must he an apprehension as to immediate death.
2. To effect the transfer of property, by way of gift in anticipation of death.
3. Mere apprehension of death as to old age is not sufficient.
Section 129 of T.P. Act deals with Death-Bed-Gift or Donatio Mortis Causa. Similarly, Section 191 of the Indian Succession Act. 1925 deals with Death-Bed-Gift with regard to movable property.
With regard to the restrictions of making a death-bed-gift by a Muslim, the rules with regard to disposition to the extent of 1/3 td' net assets (after meeting debts and funeral expenses of testator) and also to obtain the consent of other heirs, are applicable in the Case of Mart-1JI-Maui also.
shaik. Muneer Basha
(Querist) 22 February 2012
so it is invalid if the will is created in favor of 2 sons though there are other heirs without their consent(other heirs's), even the property is self acquired by the her?
the entire property cannot be made through will only 1/3rd can be ?
if she made entire property through gift in favour of two sons without consent of others as it has her self acquired property is it valid ?
