Drafting and validity of Wills

Testator and his competence The essential requirements for the capacity of a testator along with the views of jurists on the issue may be mentioned as below:

 

 Every Muslim of a sound mind either male or female is competent to make a will and there is consensus of the Muslim jurists on the point. A will, therefore, made by an insane, lunatic or idiot person cannot be considered as valid(21): According to Fatawa Alamgiri a will made by a person who is incompetent to perform a gratuitous act is void but if a will is made by a lunatic during his lucid interval it is valid(22). The same is the position in law which treats a will made by a lunatic as void but if it is made during his lucid interval is valid(23) Regarding the age of majority as an essential ingredient for the capacity of the testator the divergence between the Schools is very great. Some jurists they take the age of majority as an essential ingredient for the competency of a testator. Therefore, according to their view a will made by a minor is void(24). While some others are of the view that a will made by a minor may be considered as valid. Those who consider a will made by a minor as valid they themselves have divergence of opinion regarding the age of the minor and state of his understanding, the detail of which may be mentioned as below: The majority of the Maliki jurists they generally do not regard a will made by a minor as valid. However, some of the Maliki jurists they regard the will of a minor as valid if it is made for a pious purpose while others are of the opinion that it should not be restricted to these purposes alone. They give the absolute right to a minor who can comprehend his act to make a will for any purpose recognized by Shariah(25). The Shafeis and Shias they also agree generally with the Malikis(26).

 

The Hanafis on the other hand, they do not consider a will made by a minor as valid excepting few who consider it valid if it is made by a minor who is approaching to his puberty or if it is made concerning his funeral arrangements . It is expressed in Fataw-i-Alamgiri that “a will made by a person under puberty whether he is Murahik (one approaching puberty) or not is unlawful according to us”(27). The same view is expressed in Radd-ul-Mukhtar that “a will of minor either he can comprehend his act or not is void”. So a will made by a minor either mummayiz or ghair mummayiz is invalid according to the majority of the jurists, as they take the age of majority of the testator as an essential ingredient for his competence to make a valid will. The Shafeis(29) they also agree with the views of Hanafia on this issue. The law favours the views of Hanafis and Shafeis and does not recognize the will a minor irrespective of it either he can comprehend his act or not. In law any person under 18 years of age is considered as minor and transactions made by him during his minority will be considered as invalid(30).

 

As regard the capacity of a person who is condemned to death for an offence there is no provision both in Shariah & Law to deprive him of making a valid will. 4. As regard the difference of religions of the testator and legatee, a will made by the testator will be considered as valid according to the majority of the jurists(31) except Shafia(32) who do not consider it as valid.

 

Alongwith this agreement of the majority of jurists there is divergence of opinion among them on the issues mentioned below:

a) If a Zimmi makes a will of one third of his property to mourners or singers or to erect a church it will be void and if he makes a will to send certain muslims on Hajj or to construct a Masjid for the muslims then it will be valid only if the persons are specified but in case they are not specified it is void. This is the view of Imam Abu Yousaf and Muhammad but according to Imam Abu Hanifah it is absolutely valid under all circumstances.

b) When an alien mustamin makes a will to a muslim or a zimmi for the whole of his property it will be valid unless his legal heirs are residing in Dar-ul-Islam. Then in this case it will be valid only to the extent of one third of his property and the excess will pass on 39 to his heirs but if he has no heirs then it will be valid in the whole of his property.

c) If a Christian or a Jew makes a will to built Church or Synagogue and dies, then such building would descend to the legal heirs of the testator, as according to Abu Hanifa’s view the erection of this nature of will be equivalent to Waqf or for a pious purpose and will be treated as valid. However, according to the disciple’s views all such erections are sinful in their nature and therefore, are not valid(35).

 

d) A will made in favour of a murderer who has intentionally caused the death of testator is not valid and there is consensus of the jurists of this point. However, the difference does lie among the jurists in case of unintentional murder and it has a detail which may be mentioned as follows:

 

i)                    According to Imam Abu Hanifah if the cause of death is unintentional or by mistake it will be void. Unless it is caused by a minor or insane person(36).

ii)                   According to Shia law it is absolutely void (37).

 

e) If a will is made by an apostate who has converted his faith to Christianity, Judaism or any other religion than Islam, it is void according to Imam Abu Hanifah but valid in the views of Abu Yousaf and Muhammad. However in case of a female apostate it is valid according to the views of all Hanifi jurists as according to their views she is not liable to put to death for her apostasy(38).

 

f) The will of a person who commits suicide is valid according to the Hanifi doctrine(39) whereas it is invalid under the Shia Law(40)

 

g) In law it is considered to be valid if it is made before the Commission of suicide but if it is made after doing any act towards the Commission of suicide it is void. As it has been held in the case of Mazhar Hussain Vs. Bodha Bibi that “the will made by the deceased who made the will first and afterwards took poison is valid”(41) Essentials of Legatee or Devisee (The Musa Lahu) In principle any person who is capable of holding property may be a valid legatee under a will and there is a consensus of the Muslim jurists on the point(42). However, the divergence among the jurists on the issue may be discussed as follows:

i)        According to the Hanafi doctrine the legatee must be in existence at the time of making the will and if he is not alive at the time of making the will, it will not be valid; as it is stated in Fatawai Alamgiri(43)that "there is no will for a non -existent or a dead''.- under the Shia Law(44) it is not necessary that the legatee must be in existence at the time of making the will however he should come into existence before the testator’s death.

 

ii)       According to the majority of jurists(45) a will in favour of nonMuslim is valid and their views are based on the tradition that the Messenger of the Allah sent various gifts to Abu Sufyan Ibn-eHarb and Sufyan bin Ibn-e-Ummayyah for the purpose of distributing them among the poors of Makkah and this was the time when they had not yet embraced Islam. On the basis of this Hadith the Hanafi jurists(46) are of the view that gifts and will can be made both to the muslims and non-muslims. However, Shafeis(47) are of the view that no will can be made in favour of non-muslim absolutely.

 

iii)     No will can be made to an apostate (a person who has renounced Islam), and on this issue there is consensus(48) of all the schools; however, in case of a women apostate there is divergence of opinion. Some of the jurists they hold that she will be treated like a male apostate and a will made in her favour will also be invalid. While others they hold a different view and are of the opinion that in case of a women apostate it is valid.

 

iv)     A will in favour of a child in the mother’s womb is valid according to Hanafi doctrine(49) provided he is born within six months of the will. They are of the opinion that if a child is born within six months of the date of making the will he will be treated as a legatee in existence and is competent to take the will. According to Shiah(50) and Maliki(51) doctrines there is no limitation as to time when the child should born. All that is necessary is that the legatee must be in existence before the death of the testator(s). The law favours and recognizes the position of Hanafi doctrine(52) on this issue, as it has been decided by the Lahore High Court in one of it's case titled chano bibi vs Mohammad Riaz(53) that for 41 the validity of a will the legatee must be in existence at the time of making the will or should be born with in six months of the death of the testator

 

v)       A will can be made for any legal, pious or charitable purpose. It can be made in favour of poor generally or in favour of a particular body of them. According to the Hanafi doctrine(54) it is lawful to make a will in favour of poor christians as there is no sin contrary to constructing a church for which there is a sin and therefore it is illegal and this principle applies to the poor of all religions and faiths in their views. However, according to Shia(55) a will can only be made in favour of muslim poor.

 

vi)     It is lawful to make a will in favour of a Masjid but according to Imam Abu Hanifah no will can be made to make a graveyard or for constructing inns for the passers-by. However, according to his two disciples it can be validly made for all such purposes.

 

vii)   A will can also be made either to an identified individual or in favour of a class for example a will in favour of someone by name or by description as a will in favour of certain students, patients, a family or a group or for the construction of a certain houses or institutions or hospitals for a particular purpose. According to the Hanafi doctrine(56) a will can also be made in favour of unspecified class or a group of people.

 

Subject of Will (Legace) and its Validity Any property moveable or immovable which is capable of being transferred and which exists at the time of the testator’s death can be the subject of a will. It is also necessary for the validity of legace that it must be owned and possessed by someone in his individual capacity. In other words, we can say that the following conditions are necessary for the validity of legace to make a valid will:

a) The property must be capable of being transferred.

b) The testator must be the owner of the property.

c) The property must be in existence at the time of testator’s death. It is not necessary, however, that the subject of will must be an existence at the time of making the will as in the case of Bai-us-Salam and there is consensus of the jurists on this issue, along with some difference in some minor matters(57). 42

d) A will can also be made in rights of Easements which can be capable of transfer e.g. right of way, right of water, light etc. and there is consensus of the jurists on this issue(58)

e) Although the Quran does not impose any restriction on the extent of the disposition of the property, however, there is complete unanimity of jurists both Sunni and Shia that a will can only be made to the extent of one third of the total property belonging to the testator and this limitation is based on the address made by the Messenger of Allah at the time of Hajjahtul-Wadah which states:

 

“O people, verily Allah has specified the shares of each heirs in the property of the deceased, it is not permissible to make a will in favour of heirs nor should it exceed to one third(59).