Wills (Wasiyat) under Muslim Law: Essentials and Limitations

Introduction: Understanding the Concept of Wills (Wasiyat) in Muslim Law

In Islamic jurisprudence, a Will or Wasiyat represents a profound moral and legal institution. It is not merely a testamentary document transferring property after death, but a religiously endorsed mechanism grounded in the principles of justice, fairness, and benevolence. The concept of a Will in Islam is derived directly from the Quran, the Hadith of the Prophet Muhammad (peace be upon him), and centuries of interpretation by Islamic jurists (fuqaha). In essence, a Will allows a Muslim to make provisions for the distribution of up to one-third of their estate in a manner different from the default rules of inheritance, primarily for charitable purposes or to benefit persons who are otherwise excluded from inheriting.

Historically, the institution of Wasiyat served two purposes: first, as a means to ensure the testator could fulfill obligations such as repayment of debts and charitable bequests; and second, as a method to provide for non-heirs or needy relatives who were not entitled under the strict Islamic inheritance rules. The Quran makes explicit reference to the necessity and importance of making a Will in Surah Al-Baqarah (2:180):

"It is prescribed for you, when death approaches any of you, if he leaves wealth, that he makes a bequest to parents and near relatives in a fair manner – this is a duty upon the righteous."

Although later revelations altered the entitlement of certain relatives through fixed shares (faraid), the principle of making a Will for non-heirs remains embedded in Islamic law.

In India, the law relating to Muslim Wills is governed by personal law, meaning it varies between Sunni and Shia schools, and is supplemented by the Indian Succession Act, 1925 where Muslim personal law is silent. This blog explores the essentials, limitations, revocation, and legal consequences of Wills under Muslim law, supported with Quranic injunctions, Hadith references, and relevant judicial precedents.

(Also Read:Disqualification from Inheritance in Muslim Law )

Essentials of a Valid Will (Wasiyat) under Muslim Law

To be valid, a Will under Muslim law must fulfill certain religious and legal requirements. These essentials ensure that the Wasiyat aligns with Islamic teachings and is enforceable in law.

1. Testamentary Capacity of the Testator

The person making the Will (testator) must be:

A Muslim at the time of making the Will: The law applicable will be Muslim law even if the testator converts later.
Of sound mind: The testator must understand the nature and effect of their testamentary disposition. A person of unsound mind cannot make a Will unless they regain sanity.
An adult: Under Muslim law, adulthood is attained at puberty, which is presumed at 15 years of age unless proven otherwise. This is in contrast to the Indian Succession Act which prescribes 18 years.

Case Reference: In Amin Bibi v. Saiyid Abu Talib (AIR 1926 All 21), it was held that a Muslim of sound mind and above the age of majority as per personal law can make a valid Will.

2. Free Consent

The Will must be made voluntarily, without coercion, fraud, or undue influence. Any Will obtained through force or manipulation is void. The Quran explicitly condemns injustice and compulsion in matters of property disposition.

3. Subject Matter of the Will

The property bequeathed must:

Be owned by the testator at the time of death (not merely at the time of making the Will).
Be capable of transfer (not res extra commercium such as waqf property).
Exist in a tangible, identifiable form.

4. Bequest in Favour of a Legatee

The legatee (beneficiary) may be:

A non-heir (ghair waris), such as a friend, servant, or charity.
An heir (waris), but only with the consent of other heirs after the testator’s death.

5. Limitation of One-Third Rule

One of the most distinctive features of Muslim Wills is the restriction that a person may only bequeath up to one-third of their estate after payment of funeral expenses and debts, unless the heirs consent to a larger bequest. This is based on the Hadith:

"A third, and a third is much." (Sahih Bukhari, Sahih Muslim – narration of Sa‘d ibn Abi Waqqas)

6. Compliance with Religious Principles

The Will must not contain any bequest that contravenes Islamic injunctions, such as bequests for unlawful purposes or to persons disqualified under Shariah.

Limitations on a Muslim Will (Wasiyat)

Muslim law imposes several limitations to ensure that the principles of Quranic inheritance are not undermined.

Bequest to an Heir Without Consent

If the testator bequeaths property to a legal heir without the consent of other heirs, the bequest is void to the extent it exceeds their fixed share.

Bequest Exceeding One-Third Without Consent

The strict one-third limitation preserves the rights of heirs. If the Will exceeds this portion without their consent, it is invalid beyond the one-third.

Bequest for Unlawful Purposes

A Will cannot be made for prohibited purposes under Islam, such as funding activities contrary to Shariah.

Revocation of Wills

Muslim law recognises three primary methods of revocation:

1. Explicit Declaration
The testator may verbally or in writing declare that they revoke the earlier Will. Such an explicit act renders the Will void from that moment.

2. Disposal of Subject Matter
If the property mentioned in the Will is sold, gifted, or destroyed during the lifetime of the testator, the Will in respect of that property stands revoked.

3. Making a New Will
Where a subsequent Will is inconsistent with the earlier Will, the earlier Will is revoked to the extent of inconsistency.

Quranic and Hadith Basis for Wasiyat

The Quranic verses in Surah Al-Baqarah (2:180) and Surah Al-Ma’idah (5:106) encourage fairness in making a Will, while multiple Hadith stress the one-third limitation. These injunctions ensure that a Will complements, rather than replaces, the fixed inheritance shares.

Judicial Approach in India

Courts in India have consistently upheld the religious and legal principles of Muslim Wills. In Abdul Manan Khan v. Mirtuza Khan (AIR 1991 SC 2234), the Supreme Court reiterated that a Muslim cannot will away more than one-third of their estate without heir consent.

Modern Relevance and Application

In contemporary times, Muslim Wills are used not only for charitable purposes but also to provide for dependents such as stepchildren, foster children, or relatives excluded from inheritance. Digital wills and registered wills are also emerging, but the core principles remain unchanged.