The person who makes a will is called legator or testator. The legator must have the capacity to make a will. Every (i) Muslim of (ii) sound mind who has (iii) attained the age of majority has capacity to make a will.
Muslim:
The legator must be a Muslim at the time of making of the will. Only that will is governed by Muslim personal law in which the legator was a Muslim at the time of its execution. Where a Muslim has contracted his marriage under the Special Marriages Act, 1954, the will executed by him is governed by the provisions of the Indian Succession Act, 1925.
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It may be noted that a will operates only after the death of the legator; before his death, it is simply a mere declaration on the basis of which the legatee may get the property in future. There may be cases where a person was Muslim at the time when he made the will but, has subsequently renounced Islam and at the time of his death he was a non-Muslim.
If a will has been executed by a Muslim who ceases to be a Muslim at the time of his death, the will is valid under Muslim law. But, according to Maliki law the testator must be a Muslim also at the time of his death.
It may be noted that Sunni and Shia laws relating to wills differ on many points. The will is governed by the rules of that school of Muslim law to which the legator belonged at the time of execution (making) of the will. For example, if the legator was a Shia Muslim at the time when he wrote the will, only Shia law of will is made applicable.
Soundness of Mind:
At the time of execution of a will (i.e., when it is being made), the testator must be of sound mind. A will executed by an insane person is void. Under Muslim law, the legator must have a perfectly ‘disposing mind’. That is to say, the legator must be capable of knowing fully the legal consequences of his activities not only for a brief period when the declaration was made, but much after that.
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According to Ameer Ali, a will executed by a person during soundness of mind is void if the testator does not remain of sound mind at least for six months from the date of execution of the will. Citing Kazi Khan, Ameer Ali observes:
“If a person makes a Wasiyyat and subsequent thereto becomes a permanent lunatic, in such a case the Wasiyyat will become void. But when the madness has not lasted over six months, the bequest will not be voided.”
Age of Majority:
The testator must also be adult. He must have attained the age of majority at the time of execution of the will. For purposes of making a will, the age of majority is governed by the Indian Majority Act, 1875, under which, a person attains majority on completion of eighteen years (or on completion of twenty-one years, if he is under supervision of Courts of Wards).
Thus, the testator must be of eighteen or twenty-one years, as the case may be, at the time of execution of the will. A will executed by a minor is void. But, if a person, who had made a will during his minority, ratifies the will upon attaining majority, the will becomes valid.
Suicide Attempt by Legator:
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Under the Shia law, if a person executes any will after attempting to commit suicide, the will is void. For example, where a person seriously wounds himself or, takes poison to end his life and then makes any will before his death, the will is void.
The reason behind this rule is that where a person has attempted suicide, he cannot be said to be in his normal state of mind. After the attempt has been made, his mental capacity is completely disturbed. But under Sunni law, the will executed in such circumstances is perfectly valid.
However, if the testator executes a will before attempting to commit suicide, the will is valid both under Sunni as well as under the Shia law. In Mazhar Husen v. Bodha Bibi, a Shia Muslim expressed his will through a letter addressed to his attorney. After giving in detail the scheme of distribution of his properties, he wrote the following words.
“In consequence of having suffered to a certain extent and the exposure being so great that I could not show my accused face to any one, I thought it advisable to put an end to my life, and therefore, took poison and died today.
Please begin to take all the proceedings after pursuing this letter.” It was held by the Privy Council that on the basis of the facts available to the court, it may be said that the testator had made the will first and thereafter took the poison.
Their Lordships of the Privy Council observed that the words “took poison and died”, cannot be interpreted in the past tense. It simply meant that the testator had resolved to take poison and intended to die.
Moreover, in the letter to his attorney, first he distributed his properties and in the subsequent sentences he wrote that he had taken poison. Accordingly, the letter was interpreted to mean that he had executed the with first and thereafter attempted suicide. The will was, therefore, held valid.