As manager, all that he was entitled to do was to pay the debts and distribute the estate as directed by the will. He had no power to mortgage or sells the property of the deceased—not even for the payment of his debts.
Today, however, the deceased’s property vests in the executor, even though probate has not been granted, and he has power to dispose of the property vested in him in the due course of administration, a power which he did not possess under pure Muhammadan law.
The Fatwai-i-Alamgiri defines a will (wasiyyat) as the “conferment of a right of property in a specific thing, or in a profit or a gratuity to take effect on the death of the testator”.
The three essential characteristics of a will under Muhammadan law are:
1. Capacity to make a will.
3. Property in respect of which a will can be made.
1. Capacity to Make a Will:
A Muslim who is of sound mind, and who is not a minor, may make a valid will.
Age of Majority:
Minority under Muhammadan law terminates on the completion of fifteen years of age. But according to the Indian Majority Act, 1875, the age of majority is the completion of 18 years, which is extended to 21 years where a guardian has been appointed for the property or person of the minor, under the Act, or where the minor is under the guardianship of a guardian under the Court of Wards Act.
But the Act does not affect the capacity of any person to act in the matter of marriage, dower, divorce and adoption: S. 2(a) of the Act. In other words, S. 2(a) does not exempt testamentary succession (i.e., wills) from the applicability of the Act. Thus, the Act has modified Muhammadan law on the question of minority, except in respect of dower, divorce and marriage. Thus, a Muslim, who is less than 18 years of age, cannot make a valid will.
It is interesting to note that under the Shia law, a will made by a person after he has taken poison, or done any other act towards the commission of suicide, is not valid. No such rule exists under the Sunni law.
No particular form is required to make a valid will. Any unequivocal expression of a testamentary nature will suffice. It may be made either verbally or in writing.
Under Muhammadan law, the form of a will is immaterial. The testator need not observe any formality in making his will. The only necessary requisite is that the intentions are declared with sufficient clearness to be capable of being ascertained. Thus, any unequivocal expression, written or oral, will suffice.
It is not necessary that a testamentary disposition under Muhammadan law should be in writing. If oral, no specific number or class of witnesses need be present. Even if it is in writing, it need not be signed by the testator or attested by a witness.
Thus A, a Muslim goes to an attorney and gives him instructions to draft his will. Under the said instructions, A’s bungalow at Matheran is given to B. The attorney prepares the will in accordance with A’s instructions. A dies before signing the said will, for the reasons stated above, the will of A is perfectly valid, and Â will be entitled to the bungalow at Matheran.
3. Property in Respect of which a will can be made:
Any property which is capable of being transferred, and which exists at the time of the testator’s death, may be disposed of by a will. Needless to say, property which belongs to another cannot be bequeathed by a will.
As stated above, a Muslim can dispose of only one-third of his property which is left after payment of his funeral expenses and his debts. The balance two-thirds of the property goes to the heirs of the deceased.