Will: under

Islamic
Personal Law
Group 2:
1. Uffaifah Gul Samoo (Coordinator)
2. Maria Qadir ( Researcher)
3. Ali Gohar Shah ( Writer)
4. Tufail Ali ( Researcher)
Will –an intro
A ‘Will or Testament’ is a document or an instrument which declares or contains
the intention of the owner of the property as to how his property is to be disposed
of (distributed) after his/her death. The will takes effect on the death of the
person making it. It can be revoked by the maker, before his death. 
 1. The legator must be competent to make a Will.
Essentials of a
valid Will
2. The legatee must be capable of taking such endowment.
3. The property which is endowed by the legator must be a bequeathable property.
4. Free consent of the legator and the legatee.
5. The legator must possess testamentary rights over the property.
Cases where Will is not Valid 
In following cases will is not valid: 
• If it is in favor of a legal heir. 
• Contingent Will is not valid. 
• Will to unborn child 
Competency of legator
According to Muslim Law, any person, who is a major and is of
sound mind can make a will. However, a minor can make a will subject
to ratification on attaining majority.
Characteristics of
a legatee
A legatee is competent to take a Will on condition that he must be living at the time of
death of the legator. This is because a Will comes into effect only after the death of the
legator and not when it is made by the legator. Thus, a legatee has to be a person in
existence at the time of death of the legator.
A Will can be declared in favor of a non-muslim, minor or an insane person. What is
important is that a legatee must be in existence and competent to hold the property. The
age, sex, caste, religion, gender and state of mind is insignificant in order to become a
lawful legatee. A charitable or religious institution is also capable legatee and any Will in
favor of it is lawful.
Property in
question:
Any type of property, corporeal or incorporeal, moveable or immovable, can
constitute the subject matter of the Will. But a legator can bequest a property in a
Will only under two conditions-
1. If he owns the property at the time of his death.
2. The property must be transferable.
Consent
Before transferring legal title to the legatee under a Will, it is important to take
the consent of the legatee to know whether he wants to accept the Will or not.
The acceptance can be expressed or implied. A legatee has a complete right to
disclaim the Will. So, if a legatee declines to own any property bequeathed to
him, then the Will is considered to be incomplete and invalid.
 People concerned
Persons in Whose Favor Will Persons who cannot Make
can be Made. Will:
• A will can be lawfully made in favor of the • Following persons cannot make will:
following:
• Who is Minor
• An individual
• Who is Lunatic.
• An institution
• Who has Unsound mind
• A non- Muslim
• A minor
• An insane
Wills- and their
types
A Will can be made either orally or in writing or even by gestures.
• Oral will: A simple oral declaration is also considered as a valid Will. It is not abiding to
follow any particular process or formality in order to constitute a Will. A mere oral
declaration is enough. But it has to be proved with extreme fidelity with precision in
date, time and place.
• Written will: A Will, written, is valid even if it is not signed by the legator or attested by
the witnesses.
• Will made by gestures: a Will may be made by gestures. For example, if a sick person
makes an endowment and cannot speak due to weakness, gives a nod with his head in a
comprehensive way and if it is understood what he is trying to convey and subsequently,
he dies without regaining his ability to speak, the bequest is valid and lawful.
Extent of property to be bequeathed
If a Muslim desire to make a Will of his property, he is allowed to do so only to the
extent of one-third of the bequeath able property. This extent of one-third is
calculated after the expenses of his debts and funeral etc. Any bequest exceeding the
limit of one-third Will not come into effect unless the heirs of the legator give their
consent to it. In case the heirs do not give their consent, then the bequest Will be
valid to the extent of one-third only and the remaining two-thirds Will be transferred
through intestate succession. A Muslim who does not has any heir may bequest his
property to anyone and in whatsoever amount he may desire to give.
Revocation of a
Will
Muslim law grants an emancipated right to legator exercising which he can
revoke the Will or any part of the Will executed by him anytime. Similarly, he
can add something reasonable to the Will as well.
A legator may revoke the Will either expressly or impliedly.
Express Revocation: An express revocation may be done in oral or in writing.
Implied Revocation: Any act done by legator contrary to the bequest Will
revoke the Will. In other words, an act which leads to the annihilation of the
subject-matter of the bequest is considered as an implied revocation of the Will.
 Bequeathing Conditions
 
Other considerations that are induced by the Muslim Law include: 
A person can bequeath a property, even if he does not possess it at the time of
writing the will, but has it in his possession at the time of death. (If not, of course,
the will becomes null and void). 
An individual cannot lay any conditions or requests on the bequeaths. The bequests
have to be unconditional. 
However, one can make an alternative bequest, stating that in case a person (the heir)
is not alive, another heir (heir-2) will get his assets. 
 Case laws
Mrs. Fatima Mansuri P L D 2017 Sindh 309
While the capacity of a Muslim to make a bequest was circumscribed by
principles of Islamic Law, as per which, bequest could only be to the
extent of a third of the testator's property/estate; however, in case where
heirs consented to the said Will, a bequest of more than one-third of the
property, which by itself was not valid, would become valid.
Muhammad Khan v. Habibullah Khan (PLD 1994 SC 650)
if any person gifts the property to one heir thereby depriving the other,
then irrespective of the fact that the heir deprived is a pious and religious
person or illiterate and characterless, such gift will not be void. The
reasons given are that the donor disposes of the property of which he is
the sole owner and no other person has a right in it. Although such a gift
will not do justice amongst the heirs, it will not be void. According to
these Imams if a father gives preference to one heir, then such preferential
gift will not be void
BIBLIOGRAPHY:

• https://cite.pakcaselaw.com/pld-karachi-high-court-sindh/2017/309/
• https://sys.lhc.gov.pk/appjudgments/2015LHC4236.pdf
Conclusion
To conclude, a will is the disposition of property which is to take effect at the
time of the person making it. It operates from the time before his death.