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What is a Will?
A Will or a testimony is a legal announcement by which a person entitles one or more people to manage his estate and provides for the transfer of his property at death. A person creating Will is known as a testator.
A person creating a Will should be of sound mind, according to Muslim Law in India. Under Muslim Law, a person reaches majority at 15 years and in case the guardian is kept by the court for a minor, the minority will terminate at the age of 21 years.
A Muslim member can give any kind of a property which is movable or immovable, corporeal or incorporeal but should be in existence and should be transferable at the time of testator death. The legatee (a person, in whose favour the Will is created) can be of the same religion or of a different religion, can be a male or a female, a major or a minor or even a child in the womb, provided the child is born within six months of the testator’s death.
Since Islam contains two sections known as Shia and Sunni; the Shia Law differs. It is different in terms of creating a Will even if a child is in a womb and takes the longest time of gestation period ie, ten lunar months. It is clearly mentioned that a Muslim wife cannot be disinherited and in case she is one of the multiple wives, she will share her inheritance in equal proportions with the other wives.
The form of Muslim Will:
Under Muslim Law a Will can be created either by writing or orally. There
is no specific form of creating a Muslim Will nor there is a need for signature or attestation and there is also no need for a signature or attestation. If the Will is orally created, the person declaring it should establish and prove the presence of the oral Will in a clear and precise manner.
Also, a person creating a Will can cancel the Will anytime as per his/her wish. The cancellation of the Will can be either orally or by writing and the Will should be cancelled by the testator by transferring or completely destroying the subject matter of the Will or by giving the same property to another person by creating another Will.
If a Muslim marriage has been conducted under the Special Marriages Act, 1954, in such case, the married Muslim cannot implement a Will under the Muslim law as the provisions of Indian Succession Act, 1925 shall be applicable in such cases.