The following is the eligibility criteria of person capable of making wills:
a) An individual of shall be of a sound mind;
b) Should have attained age of majority that is shouldn’t be a minor;
c) The person should not have been under undue influence;
d) A person condemned to death for an offence there can make a will.
There is not form and manner prescribed under sharia law, it could be verbal or written as long as intention can be ascertained. However characteristic of a valid will mostly include:
a) Substantial characteristics of a will;
b) Shall be operative after the death of the testator and can be amended reversed or changed during the life of the testator;
c) A will shall only be valid if it bequests property in existence. On extinction of property the will becomes null;
d) A Muslim will in writing need not be signed and if signed need not be attested.
a) If a Zimmi makes a will of one third of his property to mourners or singers or to erect a church it will be void and if he makes a will to send certain muslims on Hajj or to construct a Masjid for the muslims then it will be valid only if the persons are specified but in case they are not specified it is void.
b) When an alien mustamin makes a will to a muslim or a zimmi for the whole of his property it will be valid unless his legal heirs are residing in Dar-ul-Islam. Then in this case it will be valid only to the extent of one third of his property and the excess will pass on to his heirs but if he has no heirs then it will be valid in the whole of his property.
c) A will made in favour of a murderer who has intentionally caused the death of testator is not valid.
d) The will of a person who commits suicide is valid according to the Hanifi doctrine whereas it is invalid under the Shia Law.
In principle any person who is capable of holding property may be a valid legatee under a will and there is a consensus of the Muslim jurists however there are certain other conditions stipulated by different schools of thought:
a) the legatee must be in existence at the time of making the will or at the time the will becomes effective;
b) No will can be made to an apostate (a person who has renounced Islam), and on this issue there is consensus of all the schools; however, in case of a women apostate there is divergence of opinion.
c) A will in favour of a child in the mother’s womb is valid according to Hanafi doctrine provided he is born within six months of the will.
d) A will can be made for any legal, pious or charitable purpose. It can be made in favour of poor generally or in favour of a particular body of them.
e) It is lawful to make a will in favour of a Masjid.
f) A will can also be made either to an identified individual or in favour of a class.
Any property movable or immovable which is capable of being transferred and which exists at the time of the testator’s death can be the subject of a will. It is also necessary for the validity of legacy that it must be owned and possessed by someone in his individual capacity. In other words, we can say that the following conditions are necessary for the validity of legacy to make a valid will: a) The property must be capable of being transferred. b) The testator must be the owner of the property. c) The property must be in existence at the time of testator’s death.
