“The instincts and affections of mankind, in the vast majority of instances, WILL lead man to make provisions for those who are nearest to them in kindred and who in life have been the objects of their affections.”
A will or a testament is a declaration of the intention of the person making it with regard to the matters which he wishes to take effect upon or after his death while a codicil is a document which alters any one or more provisions in the will or adds any provision in the will or rectifies the mistakes, if any, in the will. It is supplemental to and considered as annexure to a will previously made. The concept of wills emanated from the right of absolute ownership in one’s property. When a property holder died, leaving heirs and no will, it lead to unnecessary family squabbles. Wills and codicils came to the rescue and aided in a fair distribution of property, as per the prerogative of the executer of the will. Wills were a medium to distribute the property acquired by the testator in his or her life through personal preferences and minimal interference of law (as in case of Muslim Personal Law which allows only one-third of the testator’s property to be divested through wills). The fact however was that despite the advantages of executing a will before death, hardly three out of four people wrote a will for the shear fear of contemplating and picturing one’s death.
While there is evidence of testamentary succession by Muslims, Indian history is silent about the origination of concept of wills in Hindus, though one does find the recurring mention of divesting property as gifts, which by some jurists, is considered a divestiture similar to a will. The Indian Succession Act, 1925 consolidated the laws of intestate (with certain exceptions) and testamentary succession, applying to all the Wills and codicils of Hindus, Buddhists, Sikhs and Jains throughout India. Muslim testamentary succession however was excluded from the ambit of application of this act and remains largely governed by the Muslim Personal Laws.
This paper aims to illuminate the basic tenets of wills executed by Muslims and Hindus and attempts to bring out the distinctions between the two. It proceeds in four parts- part I dealing with the general concept of wills; part II with Muslim testamentary succession; Part III with Hindu succession through wills and in Part IV a comparative analysis of the two, followed by the conclusion. The scope of the project has been narrowed down to the preliminary discussions about the Indian Succession Act, 1925 with special focus on sections distinguishing it from the corresponding rules in Muslim Personal Law. A detailed analysis of the act has been kept outside the scope of this paper. In the part dealing with Muslim testamentary succession, the discussion has been strictly confined to ‘wasiyat’ excluding other instruments like gifts and waqfs from the scope. Also, the discussions about intestate succession in both Hindus and Muslims have been excluded from the purview of this project.
What Are Wills?
A will is a legal declaration expressing the wishes of the testator to be carried into effect after his death. The right to alter the will at any point time before the execution rests with the testator. A will may be a simple form of expression, or a complicated disposition. In either case, the beneficiary has to prove it by attesting witnesses, removing all suspicious circumstances surrounding its execution. The onus of proving that the will designates the beneficiary as the true heir to the property is on him and has to be proven beyond doubt. There may be other suspicious circumstances attending on the execution of the Will and even in such cases it is the duty of the propounder to remove all clouds of doubts and satisfy the conscience of the court that the instrument propounded( that is- the will) is the last Will of the testator. The essence of every Will is that it is revocable during the lifetime of the testator.
Section 2(h) of the Indian Succession Act 1925 states the definition of ‘Will’ that is accepted for the purpose of all testamentary successions in the country. It defines ‘will’ as “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”.
What are the necessary qualifications for a will to be valid?
The Indian Succession Act, 1925( hereinafter the Act) that applies to Hindus, Parsis, Christians, Buddhists and Jains in India, states in section 59, the necessary qualification for a valid will. For executing a valid will, prima facie, the testator should be:
- Not a minor.
The age of majority is eighteen years, as specified by the Indian Majority Act, provided the Court has not appointed a guardian for him, in which case the age of majority is taken to be twenty-one years. The burden of proving the majority of the testator of the Will is on the person who is to be benefitted from it.
- Of sound mind.
Soundness of mind (as supported by explanation 4 to section 59) refers to the capacity of a person too understand what he is doing while creating the will, the elements his will is composed of, and the proportions in which the property is divested in the will. the test of soundness of mind was laid down in A.E.G. Carapiet v A.Y.Derderian where the Court held that “if a testator has capacity to appreciate the fact that he is making a will, what are the contents of the will and ability to appreciate the nature of disposition he is making having regard for the claims of affection and family relationship and also the claims of the society or community to which he belongs.” The question of soundness of mind will therefore is a matter of fact and degree that differs from case to case. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
Section 59 in the explanation part states that married women can divest by will, their personal property. This explanation is reinforced by section 14 of the Hindu Succession Act that allows a woman to dispose her streedhan by her will. It also states that a deaf and dumb person can also execute a will if he or she is capable of understanding what he is doing. Similarly, an insane person can make a valid will in the interval of sanity and a will made by a sane person, not in his senses due to intoxication, illness etc, is not valid. Mere old age or illness of the testator however cannot make the will invalid and has to be substantially established by evidence. Here again, the onus to prove sanity (or insanity) at time of creation of will is on the person initiating the suit challenging the will as the presumption of sanity lies with the testator.
Other than section 59, section 61 of the Act declares wills obtained by fraud, coercion or importunity as invalid as it negates the free consent of the testator which is essential for the validity of the will. If it can be proved that actual force was used to compel the testator to make the will, there can be no doubt that although all formalities have been complied with, and the party was perfectly within his senses, yet such a will can never stand.
The qualifications for a valid will under Muslim Personal Law are almost similar to those under the Act.
Firstly, the testator should be a major. According to Muslim beliefs, the age of majority is attained at puberty, in absence of signs of which, it is assumed to be fifteen years. However, this is not applicable in India and the age of majority remains as stated in the Indian Majority Act. Secondly, the testator should be in legal capacity to create a will, bequeathing only that which is his own, and not under any kind of fraud, coercion or influence, with volition. He should be of sound mind while creating the will and should continue to be so subsequently. In Also in Muslim Personal law, a person who has attempted suicide cannot thereafter make a will, and if he does, the will shall be considered void. The Courts however, have circumvented this rule as there have been instances where court has regarded the will made by a Muslim who subsequently poisoned himself as valid as he had contemplated suicide before creating the will, but not attempted it.
Will-The Primary Instrument Of Muslim Testamentary Succession.
“A will from the Muslaman point of view is a divine institution, since its exercise is regulated by the Koran. It offers to the testator the means of correcting to a certain extent the law of succession…of recognizing the services rendered by a stranger, or the devotion to him in his last moments…”
Ameer Ali, citing the Hedaya.
The Muslim testamentary succession is entirely governed by the Muslim Personal Law which covers the powers to make the will, the nature of the will, the execution procedure, conditions of validity etc. The term ‘wasiyat’ means an endowment with the property of anything after death. To bequeath it, in the language of law, to confer a right of property in a specific thing, or in a profit or advantage in the manner of gratuity postponed till after death of the testator. The document containing the ‘will’ is the wasiyat-nama. A wasiyat can be made orally or in writing in which case it does not have to be attested. Though it is in writing, it need not be signed by the testator and attested by the witnesses.The option of revocation or modification in the will is available to the testator in his lifetime. The essential condition for a valid will in Muslim law (as that in the Hindu testamentary succession) is that only property with absolute ownership of the testator can be bequeathed. A bequest which is contingent, or conditional or in the future or is alternative to another, pre-existing one, would be void.
Restrictions on testamentary capacity of Muslims:
Islam recognizes the indispensible necessity that a man should have the power of making bequests. This however does not imply that he has the power to encroach upon the share of his legal heirs as stated in the holy Quran. Quoting Ameer Ali, “the Prophet has declared that power should not be exercised to the injury of lawful heirs”. Hence there are restrictions imposed on the testamentary capacity of Mulsims.
Muslim testamentary capacity is regulated in two ways:
- The One third rule:
This rule states that a Muslim cannot make bequest of more than one-third of his net property, after the discharge of debts and funeral expenses, if there are heirs present. Even for bequeathing the 1/3rd share, the Muslim has to obtain the consent of the other heirs. All schools of Muslim Law except the Ithana Ashari School lay down that bequest of more than one third unless consented to by the heirs is invalid or a custom or usage so permits.
- The consent of the heirs to confer in excess of one-third through will:
As mentioned above, a Muslim has to obtain consent of all the surviving heirs to devolve property in excess of one-third through will. This rule is in place to ensure that the heirs have voluntarily consented to the infringement of their right in the testator’s property and are not wronged in anyway. Such consent may be through words or implied conduct, but not through silence
Another limitation on the testamentary capacity is that this power should not be used to benefit one particular heir, unless consented by other heirs. In the absence of such approval, the will unjustly enriching one heir over all others shall not be recognized as a valid will.
Hindu Testamentary Succession
Unlike the Muslim Personal Law, Hindu traditional law did not directly recognize the existence of the power to make a Will. However, both traditional and modern jurists often drew the analogy between power to make a ‘gift’ and the will. While dealing with the analogy of ‘gift’ and Will, the Privy Council has laid down that even if Wills are not universally to be regarded in all respects as gifts to take effect on death, they are generally so to be regarded as to the property which they can transfer and the person to whom it can be transferred.
Section 30 of the Hindu Succession Act , 1956 deals with the testamentary succession by Hindus. It states that all testamentary succession in Hindus has to be governed by the provisions of the Indian Succession Act, 1925. A nuanced reading of this section illuminates the following facts about the testamentary capacity of a Hindu. Firstly, the property to be disposed off should be ‘capable of being disposed off’. This statement implies that a Hindu governed by Mitakshara cannot bequeath in his will, the share of any other coparcener. The Hindu Succession Act, 1956 has made it possible for a coparcener in a Joint Hindu Family governed by the Mitakshara School to dispose of his share in the undivided coparcenary property by a will. It can be thus inferred that in such cases, the rules of inheritance do not apply and the property in question is disposed off in accordance to the wishes of the testator as specified in the will. Also, after 1927, Hindus can no longer make an oral will.
Two major limitations imposed by the Indian Succession Act on testamentary capacity of Hindus are:
- The property to be divested has to be the testator’s self acquired property or share in ancestral property if partition has taken place, ie, there should be absolute ownership of the testator in the property to be divested( applicable in Mitakshara system). At no point of time can the testator divest in his will whole property, his share in the undivided property without partition or a share of the property of other coparceners in the ancestral property owned by a Hindu undivided family.
- In Dayabhaga school of Hindu law, the absolute owner of the property can divest it through will even if the property is ancestral in nature and such divestiture will deprive his heirs or widow of their property share after the partition when he dies.
- The testamentary power of women in Hindu law is limited to the property with their absolute ownership-that is- streedhan. Prior to the Hindu Succession Act 1956, Hindu women did not have the right to absolute ownership on property-hence the power to bequeath property. this right was given to women by section 14 of the Act.
Hindu And Muslim Wills- A Comparative Analysis
The detailed discussions in parts II and III of the paper illuminate the fact that while Hindu traditional law has some influence on the testamentary capacity of Hindus, with respect to the fundamental rights on property as in Mitakshara and Dayabhaga system respectively, most of the jurisprudence on Hindu testamentary succession is statutory, codified in the form of the Hindu Succession Act, 1956 and the Indian Succession Act 1925. On the other hand, the Muslim law on succession is entirely personal and traditional in nature, emanating from the sayings in the holy Quran and mandates of the Sharriat.
There are certain fundamental differences between the way property can be disposed off by Hindus and Muslims. Firstly, while the limitations on testamentary capacity of a Hindu are based on the mode of acquisition of property: that is whether the property is ancestral or self-acquired, the limitations in Muslim law are based on the sayings of the Quran limiting the property to be bequeathed by a wasiyat to one-third of the property left after discharging the debts and funeral expenses of the deceased.
The Hindu and Muslim laws of testamentary succession also differ in regards to women. While women in Hindu law have the power to distribute through will, the property they have absolute ownership in, in anyway and to anyone, the rights of Muslim women, there are certain exceptions to the general rules. For instance, generally, the share of property in bequeathed in will cannot exceed a-third unless with consent of other heirs. However, if a Muslim woman has no blood relations and her husband would be the only heir, then she can Will two-thirds of her property in his favor. Another stark difference between the two laws is that Muslim women can at no point of time get more than that inherited by the males in the family, if the bequeathed share exceeds a-third of the property as well as in intestate succession, where women get the exact half of their male counterparts.
Also, until recently, Hindus were restricted in giving away their property through will for charity by application of section 118 of the Indian Succession Act. The section plainly meant that to the extent to which the bequest is for religious or charitable uses, the application of this section is attracted despite the fact that the bequest may be for only a part of the property or some interest in the property. This section was declared unreasonable, arbitrary and discriminatory and, therefore, violative of Article 14 of the Constitution.
The heterogeneity in the Indian society at times proposes a problem of rational adjudication for the judges when they have to decide on issues as personal as succession and inheritance. Personal laws in succession have not been contested as intensely as the personal laws in marriage, divorce and adoption. Despite this, one often feels that some uniformity in succession laws will ensure equality, thereby abridging the divide between rights of Hindus and Muslims to charity and wills. It is not denied that there are present both personal laws and legislative enactments on whose foundation the cases are to be decided. However, these laws fail to conform to the sacrosanct ideal of equality for all as enshrined in the constitution. There have been suggestions and intensive debates, starting from the very Constituent Assembly that made our Constitution, to have a Uniform Civil Code, as under the provisions of Article 44 of the Constitution, to give to the Indian society a set of personal laws which ensure more or less an equal treatment to all, without attacking their religious beliefs.
Since testamentary succession is a civil act, introducing some uniformity in the laws followed by Muslims and Hindus will not attack the essence of the two religions. Therefore, there should be no limitations imposed on the extent to which the property can be bequeathed, the persons to whom such property can be bequeath and the donation of the property by will for religious and charitable purpose and this can only be done through a Uniform Civil Code for succession, as envisaged in Article 44 of the Constitution.
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- Indian Succession Act, 1925.
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