Hindu Will vs. Muslim Will: What Sets Them Apart?

In India, the legal framework governing wills varies significantly between Hindus and Muslims due to the different laws that apply to each community. Hindus, including Sikhs, Jains, and Buddhists, are governed by the Indian Succession Act, 1925, and the Hindu Succession Act, 1956, while Muslims are subject to the Muslim Personal Law (Shariat) Application Act, 1937.

This article delves into the distinctions between Hindu wills and Muslim wills, highlighting the legal, procedural, and philosophical differences.

Hindu Will

Definition and Legal Framework

A Hindu will is a testamentary document that outlines how a Hindu’s property will be distributed after their death. It is governed by the Hindu Succession Act, 1956, which provides testamentary freedom, allowing Hindus to dispose of their property as they wish.

Wills Under Hindu Law

Section 57 of the Act-Application of Provisions of Part to a Class of Will made by Hindu, etc., addresses the territorial boundaries where only Wills executed by Hindu, Buddhist, Sikh or Jain are in effect. 

As per Section 30 of the Act, any Hindu is free to dispose of her/his property through Will, as stated in the provisions of the Indian Succession Act, 1925. The act further makes it clear that the interest of a male Hindu in Mitakshara coparcenary property shall be deemed to be a property to be disposed of by him.

The current position of section 30 states that daughters too are coparceners like men and, by virtue of birth, hold the same authority in the joint family property. A document may become a conditional will on the death of the testator, and irrevocable documents are not called a Will.

Key Features of a Hindu Will

• Testator’s Autonomy: The person making the will (testator) must be of sound mind and not a minor.
• Formalities: A Hindu will can be made orally or in writing, though a written will is advisable for clarity and legal enforceability. It must be signed by the testator and attested by at least two witnesses.
• Registration: While not mandatory, registering a will can provide additional legal security and reduce disputes.
• Property Distribution: Hindus can dispose of all their property through a will, with no restrictions on the amount or beneficiaries.

Muslim Will

Definition and Legal Framework

A Muslim will, known as a “Wasiyat,” is governed by the Muslim Personal Law (Shariat) Application Act, 1937. It allows Muslims to distribute their property posthumously, but with certain limitations.

Wills Under Muslim Law

A Will or Testament or Wasiyat means a document by which an individual distributes his or her property after death. A Will is defined by Tyabji as the bestowal of rights of property to take effect after the death of the testator. Interestingly, a Will is unique in its posthumous operation and revocation.

In contrast to other dispositions such as sales or gifts, the testator has complete power over the bequeathed property throughout their life. The legatee or the beneficiary does not have any powers over the property, including its disposal or transmission, so as to ensure that the testator’s power of enjoyment is maintained. The basic intention of Wills, according to the tradition of the Prophet, is to take care of family and relatives when the law of inheritance could not possibly cover it.

When a Muslim passes away, these four obligations need to be fulfilled:

• Settlement of their debts
• Settlement of funeral charges
• Carrying out their Will
• Distribution of the estate to the legal heirs as per Shariat.

Key Features of a Muslim Will

• Competence of the Legator: The person making the will (legator) must be a Muslim, of sound mind, and not a minor.
• Formalities: A Muslim will must be in writing, signed by the legator, and attested by two witnesses. However, Islamic law does not prescribe specific formalities for execution, and a will can be made orally or through gestures, though proving such can be challenging.
• Property Distribution: Muslims can only dispose of up to one-third of their property through a will without the consent of their legal heirs. The remaining two-thirds must be distributed according to Islamic law.
• Revocability: A Muslim will can be revoked or altered at any time during the testator’s lifetime.

Key Differences Between Hindu and Muslim Wills

	Hindu Will	Muslim Will
Legal Framework	Indian Succession Act, 1925; Hindu Succession Act, 1956	Muslim Personal Law (Shariat) Application Act, 1937
Formalities	Can be oral or written; attestation by two witnesses required	Must be in writing; attestation by two witnesses recommended
Property Distribution	No limit on property disposal	Limited to one-third without heirs’ consent
Registration	Not mandatory but advisable	Not mandatory
Beneficiaries	Can be anyone	Can be anyone, but with limitations on property distribution

Conclusion

In summary, while both Hindu and Muslim wills serve as legal instruments for posthumous property distribution, they are governed by different laws and have distinct procedural and substantive requirements.

Understanding these differences is crucial for individuals seeking to ensure that their wishes regarding property distribution are respected after their death. Whether you are a Hindu or a Muslim, consulting with legal experts can help navigate the complexities of will-making under your respective legal frameworks.

Frequently Asked Questions on Hindu Wills vs Muslim Will

Q1. What is the main difference between a Hindu will and a Muslim will?

Ans1. The key difference is that Hindu wills allow full testamentary freedom, meaning the testator can distribute their property as they wish. In contrast, Muslim wills are restricted to distributing only one-third of the estate without the consent of legal heirs, while the rest must follow Islamic inheritance laws.

Q2. Which laws govern Hindu and Muslim wills in India?

Ans2. Hindu wills are governed by the Indian Succession Act, 1925, and the Hindu Succession Act, 1956. Muslim wills follow the Muslim Personal Law (Shariat) Application Act, 1937.

Q3. Can a Hindu or Muslim will be oral?

Ans3. Hindu wills can be either oral or written, though a written will is recommended for clarity and legal validity. Muslim wills can also be oral, but proving them in court can be difficult.

Q4. Is registering a will mandatory for Hindus and Muslims?

Ans4. No, registration is not legally required for either Hindu or Muslim wills. However, registering a will is advisable as it strengthens legal validity and helps avoid disputes.

Q5. Who can be beneficiaries in Hindu and Muslim wills?

Ans5. Hindu wills allow the testator to name any beneficiary without restriction. Muslim wills also allow beneficiaries to be anyone, but only up to one-third of the estate can be freely given unless heirs consent.

Q6. Can a Hindu or Muslim will be changed or revoked?

Ans6. Yes, both Hindu and Muslim wills can be altered or revoked at any time during the testator’s lifetime.

Q7. Do Hindu and Muslim wills require witnesses?

Ans7. Yes, both require at least two witnesses to ensure the validity of the will.

Q8. Are there any restrictions on property disposal in Hindu and Muslim wills?

Ans8. Hindus have no restrictions and can distribute their property however they wish. Muslims can only bequeath up to one-third of their estate freely, with the remainder following Sharia inheritance laws.

Q9. What happens if a Hindu or Muslim dies without a will?

Ans9. If a Hindu dies intestate (without a will), their property is distributed according to the Hindu Succession Act, 1956. If a Muslim dies intestate, the inheritance is governed strictly by Sharia law as per the Muslim Personal Law (Shariat) Application Act, 1937.

Q10. Why is it important to seek legal advice when drafting a will?

Ans10. Seeking legal advice ensures that the will complies with both religious and civil laws, minimizing the risk of disputes and ensuring that the testator’s wishes are correctly implemented.