Updated: Jun 22, 2023
Your seven quick questions about creating Islamic Will in India are answered here. It will include Definitions, the laws applicable in India, Choosing executors and Witnesses, the Signing process, Notarization, and Registration of your Islamic Will.
A person creating Will refers to Testator, and the one looking after probate and estate distribution refers to Executor. Testators, Executors, and Witnesses must be mentally capable, a minimum legal requirement. Executors' and Witnesses' duties adjourn as soon as they lose mental capacity. You will need to assign new Executors and/or Witnesses if you do not have any other Executors and/or Witnesses left nominated in your Will.
The Indian family law system maintains legal pluralism, refers to as a personal law system. So, the different religious adherents including Hindus, Muslims, Christians, Jews, and Parsis –are allowed to practice their laws. The personal law applies to a specific class based on religion and culture. Prior the personal law, the Muslim religion was also regulated by custom or usage. Partly, it was regulated by Shariat (i.e., Muslim personal law). The status of Muslim women under customs and usages adopted by Muslims were considered to be oppressive towards women. Before the independence of India, Muslim women through many organizations condemned customary law. Muslim women appealed for the Muslim personal law to be made applicable to them. Since then, the Muslim Personal Law (Shariat) Application Act, 1937 was passed. Even though this law is in place, unfortunately, the majority of the Muslims in India are unaware and do not utilize their rights, instead sticking to customary law for inheritance distribution. The Last Wills and Testament laws (i.e., Wills Act, Succession Act, or Probate Act) are federal level and so, no state-specific laws of Wills in India. Indian succession act 1925 is for Testamentary purposes, but Muslim personal law (Shariat) governs for succession purposes. When a Muslim marries under the Special Marriage Act 1954, the Muslim Personal Law (Shariat) Act does not apply to such a person. You can learn more HERE about the British raj ended in 1947, and many versions of Muhammadan law were abrogated, and the only remains in effect is the Muslim Personal Law (Shariat). When someone dies without Will, their estate distribution will be according to the Intestacy rule of the applicable laws based on their religion. Someone facing an intestate situation is one of the most unfortunate situations, and that makes the case and the importance of having a Will. The Intestacy rule differs vastly from Islamic inheritance law. You can learn in-depth about laws HERE under Premium or Ultimate memberships.
Executors cannot be the same as Witnesses. Two Executors are preferred over one. Three executors are preferred over two. Creating Muslim Will with one Executor is not a good idea and is legally invalid. With one executor, your estate plan will expire early if an executor dies or is unavailable. Having more executors can give longer life to your Islamic Will. Your Spouse, Adult children, or relatives can be appointed executor. Executors do not sign the Will in general.
Two witnesses are required minimum. Three witnesses are better than two but not mandatory. You cannot create Islamic Will with one Witness, which is legally invalid.
The signing process is crucial. Unless you are an estate planning expert, you may only know whether your estate plan followed the proper signing process. All parties, including Testator, Witnesses, and Public Notary, meet at one location for signing. You Will turn to nothing if you do not follow the proper signing process. You or anyone else on the earth would not discover the mistake in a lifetime, and that's a challenge. Wassiyyah provides a detailed instructions guide with your estate plan, which explains everything, to save you from missing requirements. That's where Wassiyyah's expertise comes in to help you accomplish legal and Islamic compliance. Most attorneys and online Will providers offer Single jurisdiction or Single country Will. If you are creating an International Will (only for eligible countries and jurisdictions that are part of UNIDROIT), the Will must be signed by an authorized person. The authorized person in most countries would be a lawyer, an attorney, or a person from a legal firm.
Notarization is voluntary, but you must notarize your Will because if there is no requirement today for the notarization, that does not mean that it may not become mandatory in the future. Also, your Last Will gets more validity and credibility if you notarize it.
There are no registration requirements. Registering your Will is required if you are creating International Will (if you are eligible to create under UNIDROIT).
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