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Q 18: Who can Make WILL, whether Will can be made to the Heirs.?
A: WHO CAN MAKE A WILL: Every Muslim who is of the age of majority and of sound mind is competent to executive a will. For the purposes of will, the age of majority of the testators is determined by the Majority Act, 1875. According to this Act, every minor who has attained the age of 18 years becomes a major unless the superintendence of his property has been assumed by the Court of Wards, in which case a minor becomes a major on completion of 21 years of age and not before. As already said, a minor is incompetent to make a will, but when a will is made by a minor, it may , subsequently, be validated by his ratification on attaining majority. A person cannot be deprived of his power to make a will simply because he has been condemned to death.
Under the Shia Law, a will made by a person who wounds himself mortally, or takes person for committing suicide, is invalid. It is because the law regards the person who has inflicted a fatal wound on himself, as suffering from want of sense, and also because he placed himself in the category of a dead man, to whom the provisions as to living persons do no apply.
WILL OF AN APOSTATE: there is conflict of opinion as to the validity of a will made by a Muslim who renounces Islam afterwards. The Maliki School holds that apostasy invalidates such a will, but according to Hanafis, the will would be effective, if it is lawful according to the sect from which he has apostated.
WILL OF AN INSOLVENT: It is of fundamental importance that the testator should be the proprietor of the subject of the will nor that he should be solvent. If his liability exceeds the assets, the bequest will not be effective unless the creditors discharge the estate from the payment of their debts.
NECESSARY FORMALITIES: Under the Islamic Law, a will may be made either verbally or in writingnor any particular form is necessary to constitute a will. The only requisite is that intentions are declared with sufficient clearness to be capable of being ascertained. Thus, may unequivocal expression, written or oral will suffice. Even if it is in writing it need not be signed by the testator or attested by witnesses.
Further 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.
Whether Will can be made to the Heirs: Heirs cannot be the legatees, that is, no bequest to heirs, who are entitled to inherit. This rule is relaxed only in cases, where other heirs give their consent (after testator’s death, in Hanafi Law; before or after testator’s death, in Shia Law). By giving consent, an heir can bind only his own share but not of others.
It is essential that the heir must be in existence at the time of testator’s death.