IMPORTANCE OF WILL:  SUBJECT OF WILL (LEGACY) AND ITS VALIDITY:PRINCIPAL RULES GOVERNING THE MUHAMMADAN LAW OF WILL / LIMITATIONS ON TESTAMENTARY DISPOSITION: REVOCATION OF WILL:

PRELIMINARY:

Wills or bequests, or Wasiyyat, derive their authority and sanctity from the sacred texts of the Quran:

"It is prescribed to you when death approaches any one of you and that he is to leave any wealth behind, he should bequeath equitably to his parents and kindred." (Q. 2:180)

Every Muslim who is a major and of sound mind may dispose of his property by way of will. The will can be made either in writing or orally. However, there are certain restrictions on the testamentary powers of a Muslim.

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IMPORTANCE OF WILL:

The importance of the Islamic will (Wasiyyah) is clear from the Hadith:

"It is the duty of a Muslim who has anything to bequeath not to let two nights pass without writing a will about it." (Sahih al-Bukhari)

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WHAT IS WILL:

(Definition not provided — recommend adding a brief definition here, e.g., "A will is a declaration by which a person disposes of his property to take effect after his death.")

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ESSENTIALS OF A WILL:

Regarding the essentials of a valid will, there is a divergence of opinion among the jurists of Islam. The views can be summarized as follows:

According to Hanafis:

• Ijab (الإيجاب) – An offer from the testator's side. Acceptance is a condition and proof of the legatee's ownership.

According to the majority (Malikis, Shafi'is, and Hanbalis):

1. Sigah (صيغة): Offer and acceptance

2. Testator (الموصي): The person making the will

3. Legatee (الموصى له): The beneficiary

4. Legacy (الموصى به): Subject of the will

5. Compliance with Islamic limits: The bequest must fall within Islamic restrictions

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1. SIGAH – OFFER AND ACCEPTANCE (الإيجاب والقبول):

• May be express (spoken or written) or implied (conduct of parties).

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2. TESTATOR AND HIS COMPETENCE:

Gender:

• Every sane Muslim, male or female, is competent to make a will.

Mental State:

• A will made by a lunatic or idiot is void unless made during a lucid interval (Fatawa Alamgiri).

Age of Majority:

• Varies among schools:

  • Some consider majority essential.

  • Some Maliki jurists allow a minor to make a will for pious purposes.

  • Shafi'is and Shias largely agree with the Malikis.

Condemned to Death:

• No restriction in Shariah or law preventing a convict from making a will.

Difference of Religion:

• Will is valid despite religious differences, except per Shafi'i school.

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3. LEGATEE AND HIS COMPETENCE:

General Rule:

• Must be capable of holding property.

Existence:

• Hanafis: Must exist at the time of will.

• Shias: Must exist before the death of the testator.

Non-Muslim:

• Majority allow a will in favour of a non-Muslim.

Apostate:

• Invalid for apostates. Divergence regarding female apostates.

Child in Womb:

• Hanafis: Valid if born within six months of the will.

• Shias and Malikis: Valid if born before testator’s death, regardless of time.

Legal, Pious, or Charitable Purpose:

• Allowed in favour of poor, including non-Muslims (Hanafis). Shias: only Muslim poor.

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4. SUBJECT OF WILL (LEGACY) AND ITS VALIDITY:

Conditions:

• Property must be transferable.

• Testator must own the property.

• Property must exist at the time of testator’s death.

• Includes easement rights (e.g., water, light, etc.)

Extent:

• Only up to one-third of total property (without heir’s consent).

  Based on Prophet’s address during Hajjat-ul-Wida.

• More than one-third: Valid only with consent of all legal heirs (favoured in law and held by courts like Chano Bibi vs Mohammad Riaz).

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PRINCIPAL RULES GOVERNING THE MUHAMMADAN LAW OF WILL / LIMITATIONS ON TESTAMENTARY DISPOSITION:

1. Bequest to Heir:

   • Sunni Law: Invalid beyond 1/3 without heirs’ consent.

   • Shia Law: Valid up to 1/3 without consent.

2. Bequest to Unborn Child:

   • Valid if child is born within 6 months (Hanafis); no time limit for Shias.

3. Bequest to Stranger:

   • Valid up to 1/3 without consent; more than that requires heirs’ approval.

4. Partial Bequest to Heirs:

   • Invalid without consent.

5. Murder of Testator by Legatee:

   • Disqualifies legatee from taking inheritance.

6. Bequest between Muslims and Zimmis (non-Muslim citizens):

   • Valid both ways.

7. Bequest to Slave:

   • Valid, excluding offspring.

8. Bequest by Insolvent Person:

   • Invalid if deeply in debt.

9. Bequest by Infant:

   • Invalid under most schools; Shafi’i allows it for pious reasons.

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WHEN WILL IN EXCESS OF 1/3 TAKES EFFECT:

1. With consent of legal heirs

2. In absence of heirs

3. When only spouse remains as heir

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FORMALITIES TO MAKE A WILL:

• No formality required under Islamic law.

• May be oral, written, or by gesture, provided intent is clear.

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REVOCATION OF BEQUEST:

• Will can be revoked at any time during the testator’s life, either expressly or implied by conduct.

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DIFFERENCES BETWEEN SHIA AND SUNNI LAW ON WILLS:

Issue	Shia Law	Sunni Law
Bequest to heir	Valid up to 1/3 without consent	Invalid without consent
Bequest to unborn child	Valid if born before death	Valid if born within 6 months
Killing of testator	Disqualifies if intentional	Disqualifies even if unintentional
Life estate bequest	Recognized	Not recognized

 

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CONCLUSION:

The Islamic law of wills (Wasiyyah) is a well-structured and balanced system that allows a Muslim to exercise a limited form of testamentary freedom while ensuring justice and equity among heirs. It is rooted in divine guidance from the Quran and Sunnah and is aimed at upholding social harmony and protecting family rights. The essential restrictions—such as the one-third limitation and the exclusion of heirs without consent—are meant to prevent injustice or favoritism, and to safeguard the rights of all legitimate heirs. Juristic differences between Sunni and Shia schools further reflect the richness and flexibility of Islamic jurisprudence in accommodating diverse interpretations, always within the boundaries of Shariah principles.