Who Can Make a Wasiyat?

Wasiyat under Muslim law is used as an alternative to the word will. Will generally is a legal document through which a person decides as to how after his death all his assets and properties are to be disposed of and dispensed of. 

Will as per section 2(h) of the Indian Succession Act, 1925 is a legal declaration of intention of a testator with respect to his property which he desired to be carried out after his death. Now let’s who can make a wasiyat? 

Who are parties to a will?

There are two parties to a will under Muslim law, which is:-

  1. legator/ testator: the one who executes the will is testator or legator.
  2. legatee/ testatrix: the one in whose favour will is made is a legatee or testatrix.

What are the essentials of valid will?

A will to be a valid one and to take effect as to its execution there are certain essentials that are to be fulfilled, which are:

  1. The legator/testator must be competent to make the will
  2. The legatee/testatrix must be competent to take the legacy
  3. The property must be bequeathable
  4. Free consent of legator and legatee
  5. The legator must possess the testamentary right

Who is capable of making a will?

As per Section 59 of the Indian Succession Act, 1925, persons who can make a will are:

  • Any person of sound mind can make a Will. 
  • A person who has reached the age of majority can make a Will. Further Section 60 provides that a father of any age can appoint through will a guardian for his child during minority.
  • A married woman may make a Will of her property which she could alienate by her own act during her life-time.

Other persons who can make a Will: 

  • Persons who are deaf or dumb or blind are not thereby, incapable in making a Will, if they are of sound mind 
  • Persons, who are ordinarily insane, may make a Will during an interval while they are of sound mind. 
  • No person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, so that he does not know what he is doing. 

What are the qualifications for making a wasiyat?

A person who can make a waist needs certain qualifications so as to make the wasiyat a valid one and prevent it from all kinds of disqualifications. Following are the qualification needed for making a wasiyat:

  • Must be a Muslim: person making the will mist be a muslim and in case he is not a muslim then he will not be governed by muslim personal law. In a situation where after making a wasiyat a person converts and become non-muslim and is same at time of death then also his wasiyat will be valid one.
  • Soundness of mind: it is another essential qualification as a person must be of sound mind and must have perfect knowledge of the act he is doing and must dispose of his duty while being well aware. A wasiyat made during his lucid interval will remain valid only if the insanity does not last for more than a period of 6 months.
  • Age of majority: a person can make any legal document and can be made liable for it only when he is of age of majority i.e. 18 years of age. So to make a wasiyat a person must be of 18 years or above and in case property is taken care of by a guardian then person must be of 21 years of age for making of a wasiyat.

What are conditions affecting validity of a wasiyat?

There are certain conditions in which the validity of the wasiyat is challenged and it can be declared null and void. Condition is: 

  • Suicide attempt by legator: in case legator had attempted a suicide then the wasiyat executed by him deemed to be invalid as a person who has attempted must not be in a proper state of mind and he cannot execute a wasiyat in such a state of mind. This is a position under Shia law.

On the other hand, wasiyat under Sunni law does not get affected by such circumstances.

  • Consent of legator: before executing a wasiyat, free consent of legator is mandatory and it can’t be executed if there is no free will. Generally free will is presumed but in the case of a pardanashin lady it is to be proved.
  • Consent of heirs: in case more than 1/3rd of property is bequeathed then in that case consent of the heirs is necessary otherwise the wasiyat will be invalid. This consent of heirs can be inferred through the behaviour of the heirs also.

Who cannot make a will?

There is a certain person who can’t make a will and such person as per the Indian Succession Act, 1925 are: 

  • Lunatic, insane persons 
  • Minor i.e.below 18 years of age. 
  • Corporate bodies by their very nature are incapable of making a Will, though they may benefit under the Will of an individual partner.

How is waqf created?

The number of times a person working for charitable purposes under religious sentiments gives all his property for it through the creation of waqf. Waqf can be created in three ways, which are:

  • By a living person (inter-vivos): when a person during his life gives his property for charitable purposes. He cannot give more than 1/3rd of the property as per conditions.
  • By will: when a person gives his property through will for charitable purposes it is known as creation of waqf. It is earlier presumed that shia law does not recognize it but lately it was being recognised by shia law also.
  • By Usage – when a property has been in use for the charitable or religious purpose for time immemorial, it is deemed to belong to waqf and  no declaration is necessary and waqf is inferred.