Will is a legal declaration of transfer of property by a person to another after his death. According to Section 2(h) of Indian Succession Act, 1925, “will is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. Under Muslim Law, a will executed by a Mussalman is called ‘Wasiyat’. The person who executes a Will is known as legator or testator(Al-Musi) and the person in whose favour the Will is executed is called legatee or testatrix(AL-Musa Lahu). The property, wealth substance or use fruit of a thing about which a will is made is termed as bequest or Musa-be-hi. The famous Muslim Jurist Ameer Ali was of the opinion that Will is a divine institution because its exercise is regulated by the Holy Quran. A Muslim can make a Will in favour of any person but only to the extent of one-third of the total property and if the property is given more than that in the Will then the consent of the legal heirs is compulsory. Mazhar Hussain Vs  Bodha Bibi  (1898 21 ALL 91 P.C) Court held that a will of suicide is valid, when made in contemplation of taking poison, but before poison actually been taken onus of proving that will written after swallowing poison rests on party impugning with. 

ESSENTIALS OF A VALID WILL

Under Muslim Law, a valid will is that which is having certain essentials 

1.The person making a Will i.e., legator must be competent to make a will

2.The legatee shall be capable to taking the endowment.

3.The property which is given by legator must be bequeathable property.

4.There must be free consent of legator and legatee.

5.The legator should have testamentary rights over the property.

Objective

The object of Wills according to the tradition of the Prophet is to provide for the maintenance of members of family and other relatives where they cannot be properly provided for by the law of inheritance. At the same time the prophet has declared that the power should not be exercised to the injury of the lawful heirs. A bequest in favour of an heir would be an injury to the other heirs as it would reduce their shares and would consequently induce a breach of the ties of kindred.

A Will offers to the testator the means of correcting to a certain extent the law of succession, and enabling some of those relatives who are excluded from inheritance to obtain a share in his property, and recognizing the services rendered to him by a stranger.

WHO CAN MAKE A WILL

(competent of the legato)

1. He must be a Muslim

2. Soundness of Mind

3. Age of majority

4. Consent of Legator

LEGATEE AND HIS COMPETENCE

(To whom Will can be made?)

1. Must be a person in existence

2. Child in the womb of mother (unborn persons)

3. Murderer of Legator-

4. Consent of Legatee.

5. Non Muslim

6. Charity

7. Pre-deased testator

8. Joint Legatee

FORMALITIES OF WILL

Under Muslim Law, there is no any expressed formalities for the execution of the Will. In validating a Will, the intention of legator plays a significant role. Such intention of legator must be explicit, unequivocal and clear in nature. A will can be made orally or in writing or by any other proper gesture.

ORAL WILL

A simple oral declaration is also regarded as a valid Will. It is not necessary or abiding to follow a certain process or procedure in order to constitute a Will. But the burden to validate such a Will is very brawny.

WRITTEN WILL :

A will can be written also and for a written Will no specific form is described. A written Will is valid though it is not signed by legator or attested by the witnesses. If a document possesses the important characteristics of a Will then it will be considered as a valid Will.

THE SUBJECT MATTER OF A WILL

Any kind of corporeal or property whether it is movable or immovable can be considered as the subject matter of a Will. But there are two conditions when a legator can bequest his property in a Will-

1. When he is the owner of the property at the time of his death.

2. Such property must be transferable.

In certain matter, a property endowed under a Will may or may not exist at the time of execution of Will but it is compulsory that such endowment must be in ownership of the legator at time of his death.

RijiaBibi v Md Abdul Kachem (AIR 2013 Gau 34), held that the Will executed was void as it was not consented by the heirs and all the claimants would have their rights determined in accordance with the law of Inheritance.

A Muslim cannot discard through will more than 1/3 of the net assets inside the wake of allowing (assembly) for the duties and memorial provider charges of the deceased benefactor (beneath both Hanafi Law and Shia regulation).

The relaxation of the 2/3 provide must be made accessible for appropriation among the beneficiaries. However, to pass on the 1/3 provided, the Muslim needs to collect the assent of alternate beneficiaries. 

Gulam Md v GulamIiussain, AIR 1932 PC 81 held for this case that property for beneficiaries without the assent of various beneficiaries is invalid. If the amount so transferred as felt by the testator is more than enough, as a consequence reduces it, this process is called abatement of legacy.

Shia law chooses the process of abatement of legacy through the preferential method, whereas the Sunni law, the abatement is made in a rateable manner.

EXCEPTION TO THE RULE OF ONE-THIRD

◦Since the rightful claims of the heirs should not be disturbed, it derives its origin from Hadith. There are majorly two exceptions:

◦1. An heirless (legal Heir) person can bequest the whole property.

◦2. Where the heirs themselves agree to bequest more than one-third of the property

SHIA LAWS	SUNNI LAWS
Bequest to an heir is valid only if it is one-third.	Bequest to an heir is invalid even if it is one-third.
Consent of the heirs must be given before or after the death of the testator.	In order to pass property more than 1/3 to any other person through of the testator, consent of the heirs is necessary to be taken after the death of the testator.
Bequest in favor of the child in womb of her mother is valid subjected that the child is born within 10 months of date of declaration of will.	Bequest in favor of the child in womb of her mother is valid subjected that the child is born within 6 months of date of declaration of will.

Difference

SHIA LAWS	SUNNI LAWS
A will by the testator who later commits suicide is invalid.	A will by the testator, when written or declared in his all senses, who later commits suicide is valid.
Legacy must be accepted before or after the death of the testator.	Legacy must be accepted after the death of the testator.
Legatee committing murder or causing death of the testator intentionally cannot claim the property of the testator, but if accidently or negligently then he can claim the legacy.	Legatee committing murder or causing death of the testator cannot claim the property of the testator later.
If the legatee dies before testator the legacy lapses if he dies without any heir or the testator himself revokes the Will.	If the party in whose favor the Will is transferred dies before the testator, the legacy is lapsed.

Difference