In these columns, we intend to publish informative articles on various aspects of law that needs to be fully understood by all but especially people in commercial activities, business or simply in jobs and in private business; a clear perception of these matters will help to deal effectively with law, as an when necessary
By Javaid Musarrat Advocate
In today’s legal view we are discussing the topic of Will and issues related to it. Before proceeding further one should know, what is Will and what are the ingredients of valid/ proper/legal Will? It is desire or wish of a person, which should be enforced after the death of that person. In Legal terms person who makes a Will is known as ‘tester’.
Who can make a Will? Every adult, of sound mind subject to limitations can make a Will. Law doesn’t state any particular way with which the Will should be written, hence there is no prescribed form of Will. It is not necessary for the Will to be in form of writing, it can also be made verbally, but the common practice is of a written Will as it is easier to prove in case of a dispute as compared to a verbal Will. Written Will is also preferred by law as it is much easier to enforce.
A Will in favor of an heir is not valid unless all the heirs of the dead person consent to it. In other words Will depriving right of other heirs is invalid and can not be enforced by law. Any one among the heir can consent to the extent of his share in the property and the same is being upon him and can be enforced against him.
According to Islamic law, any Muslim, adult, of sound mind can make a Will in favour of any one to the extent of one-third from his total assets. This limitation is for the reasons that after the death of a person his entire assets whether moveable or immovable devolves to the heirs of the deceased and making any Will pertaining to the entire assets of the deceased Will deprive the other heirs of their due share, as for these reasons Islamic law has imposed this restriction.
Limit of testamentary power
A Muslim by Will can not dispose of more than one third of the surplus of his estate after payment of his funeral expenses and debts to any one of his heirs. Bequests made in excess of the legal one third of the total assets can not take effect unless, with the consent of all the heirs, thereto after the death of tester.
To show an example a reference is made to a very famous case reported in the book known as ‘All Pakistan Legal Decisions 1977 Supreme Court’ on page 220; Muhammad Tufail versus Shabbir and 5 others. If the bequest exceeds one third of the total assets and other heirs refuse to consent, the bequest abates and is void in the eyes of law.
If the legatee dies before the testator the legacy will lapse and Will would be void. A bequest may be made of any property which is capable of being transferred, and which should exists at the time of testator’s death, it need not be in existence at the date when the Will is made.
The person making the Will has the power to revoke it whenever he wants and can make a subsequent Will, it means that the Will is not absolute rather it can be revoked anytime before the death of testator, rescinded or modified.
It was held by our Supreme court in the case of Muhammad Ramzan versus Hazeer Khan reported in Supreme court monthly review 1977 at page 302 that a Will made in respect of a property and gift of same property made subsequently, the one made prior was impliedly revoked. The above referred Judgment makes it clear that Will is not absolute it can be revoked expressly or impliedly.
As discussed earlier there is no prescribed form of Will and it can be made verbally or in writing, but for execution, the character and conduct of person who claims to be in possession of a Will, the prime consideration is to adjudge the genuineness of that Will. If the persons in pious, God fearing and abstains from major sins then the presumption regarding Will be in affirmative. But in case character of the person is unsatisfactory then for the execution of a Will it has to be proved by an evidence of very high degree, irrespective of the fact that the Will is in writing, because a dishonest person can easily make a forged document to achieve his goal. In Pakistan heirs of deceased person are not bound legally/morally by every Will and they can act according to ‘Mohammedan Law of Inheritance’, it can also be referred to in case of a dispute or doubt regarding execution of a Will.
Source: The News, 11/8/2008