By Lawal Pedro SAN (Esq.)
A Will can be defined as a disposition or declaration by which the person making it (the testator) provides for the distribution or administration of property after his death. In Islam it is permissible like under the English Law to make Wills, the Holy Quran enjoins Muslims to make Wills. See ch.2: 180 and 240 also Ch. 4:12 of the Quran.
Capacity to Make Will
Every adult Muslims with reasoning ability has the legal capacity to make will. An adult for this purpose is someone who has reached the age of puberty. There are differences of opinions as regards what constitute age of puberty and the reason is because, no specific age has been stipulated in the Quran. The Maliki and Shafi schools’ of Thought have considered 7 years as age of discretion. While the Shia (Shia are those who beliefs in blood relations as the prerequisite for succession to Prohethood) recognizes 10 years as age of capacity to make Will. However evidence of puberty has been considered to be menstruation in girls and wet dreams in boys. In the absence of such evidence, puberty is presumed at the completion of the age 15 years. In most Muslim countries, age of puberty has been legislated and they are from 15 years and above. In India it is 18 years, in Egypt it is 21 years, while in Tunisia it is 20 years.
Under English Law one must be at least 18 years of age to make a valid Will unless one is a military personnel on active service in which case one may make a valid Will at a lesser age. In both legal systems, the testator must have the legal capacity to dispose of whatever he bequests in his Will. When making a Will the testator must be of sane mind, he must not be under any compulsion and he must understand the nature and effect of his testamentary act. A married woman has complete testamentary power with regard to her property. Only minors and patients (of unsound minds) are incapable of making Wills.
FORM OF WILL
There is no particular format or forms of words required to make a valid Will, so long as the testator’s intention can be ascertained and the Will is clear and unambiguous. Under English Law however, a Will must in ordinary cases be in writing, and signed at the foot or end by the testator, or by someone in his presence and at his direction .Also, the signature must be made or acknowledged by the testator in the presence of two or more witnesses. Who must be present together at the same time, and must attest and subscribe to the Will in the presence of the testator. A nuncupative Wills (a declaration by the testator without any writing before a sufficient number of witnesses) are invalid, except those made by soldiers or seamen on active service (see the Wills Soldiers and Sailors Act 1918, and the Navy and Marines (Wills) Acts of 1930, 1939 and 1953).
Under the Islamic Law the Making of a Will may be either written or oral but the intention of the testator must be very clear and the Will (Wasiyya) is to be executed after his death. There should be 2 witnesses to the declaration but a written Will in the known handwriting and signature of the testator without witnesses is valid in Islam.
Failure or Revocation of a Will
A Will may be revoked by (1) another later Will (2) by destruction, burning or tearing by the testator or by some person in his presence and by his direction, with the intention of revoking it (Wills Act 1837, S. 20). The doctrine of dependent relative revocation is that the intention to revoke the Will must be absolute. if it is only conditional, e.g. upon the coming into fore of some other disposition of the property in question, then the condition must be fulfilled; if it is not fulfilled the original Will is not revoked; (3) a Will is revoked by marriage (ibid. S.18), but a Will made after in 1925 and expressed to be made in contemplation of marriage is not revoked by the solemnization of the marriage contemplated (Law of Property Act 1925, S. 177).
In Islamic Law, a testator has the right to revoke his Will either expressly or impliedly by the testator’s conduct or act of God e.g. destruction or disposal of the subject property. If the testator subsequently become incapacitated by reason of insanity, except he regains his mental capacity before his death the Will shall become revoked. Where the legate predeceased the testator the Will fails and shall become invalid. For a bequest to be valid, a legatee must be in existence at the time of death of the testator except in the case of a general and continuing legatee such as the poor, orphans etc. However where the legatee succeeds the testator but later died the right of acceptance of the Will shall fall on the legatee’s heir. Uncertainty of the time of death of the testator and legatee in a situation where both died in the same time, shall make a Will fail or invalid. English rule that the younger of the two succeeds the older persons but in Islam it is not applicable.
Where a Will is a conditional Will or its operation depends on a contingency such Will is subject to the fulfillment of such condition or contingency. Non-fulfillment shall make the Will fail with respect to the legatee. Unlike under the English law, in Islam Marriage or subsequent marriage would not render a Will invalid.