A document that contains the wishes of the person regarding the disposal of the property of such a person is known as Will. The property of a person is distributed among the heirs of the deceased by two methods – by testamentary succession and intestate succession. Intestate succession is the succession where the deceased dies without leaving behind any testament while testamentary succession is when the deceased on dying leaves behind a testament for the disposal of his property.
The federal law no. 28 of 2005 on personal status (hereinafter referred to as ‘the law’) provides for regulation of succession – testamentary and intestate of the property of the deceased. The law provides for regulations that need to be followed with respect of wills for the purpose of testamentary succession. This present article discusses the essential elements and the conditions that need to be satisfied for a valid will.
The term ‘will’ is defined by the law as the disposal of an estate that is enforceable after death. It is therefore a process of disposal of the estate of the deceased according to the wishes of the deceased. A Will may either be absolute i.e. the disposal must take place in the way specified in all circumstances, or it may have various conditions on which the disposals provided for may depend and the Will may be either contingent , dependent or restricted by such condition. Where such condition provided in the will is valid the will is enforceable provided that condition is satisfied. Any condition that is against the tenets of Islam is considered an invalid condition and where a Will is coupled with invalid conditions the will is still enforceable but without the condition. The said condition being invalid is discarded and the Will is applied as if no such condition was provided for.
Another important regulation provided for the Wills by the law is regarding the scope of a Will. According to the law, the will may be executed only out of one-third of the estate of the deceased and this one-third is calculated after deducting the amounts that are rights of any persons or the obligations of the deceased. If the distribution by the Will exceeds one-third of the estate, it may be met from the shares of the legally aged heirs if they permit for the same.
The important elements of a Will are as follows:
- 1. Legator – the person who draws the will that is to be executed after his death.
2. Legatee – the person in whose favor the Will is drawn. Legatee may be one or more than one, it may also be a group of specified or unspecified persons.
3. Bequeathed Object – is the estate of the Legator who draws the Will that needs to be given to a Legatee after the death of the Legator. The bequeathed object must be owned by the Legator and legitimate. The bequeathed object must be common or specific. The common bequeathed object shall include all the Legator’s present and future property. The specific bequeathed object shall include properties and movables, fungible things, valuable things, realties, utilities and utilization of a realty or movable for a specific or unspecific period.
4. The formula – this refers to the manner provided by the Legator in the Will for the disposal of the bequeathed property.
Further it is provided that the Legator of a Will must have capacity to draw such Will. Persons who are in their Last Illness are said to have such capacity. The Last Illness is described as the illness during which man cannot handle his usual business and in which he is most likely to die in this condition before one year. If his illness extends one year or more while he is in the same condition, his disposals shall be regarded as effective as those of a healthy person. Also, the cases in which man is threatened with the danger of death and in most cases similar to which death is most probable even if he is not ill shall be regarded as last illnesses. Even a Will created by prodigal persons is considered to be valid if the court permits for the same.
A Legator is also allowed to retract his Will anytime during his lifetime and the loss of the property that is so bequeathed by the Will has the effect of retraction of the same.
A Will may be created in favor of a specified person and in order to validate the same the said person must accept the Will during the life or after the death of the Legator. If the acceptance is given during the life it must continue till after the death. In case the person is a minor, the acceptance must be given by his guardian on his behalf after taking permission for the same from the judge.
Wills created for unspecified persons do not need to be accepted or rejected and in case of entities, establishments or institutions, the Will must be accepted or rejected by the legal representatives for the same.
The Acceptance of the Will is not required to be done by the Legatee immediately after the death of the Legator and the same may be done any time later but rejection of the Will needs to be done within a period of thirty days from the day the Legatee learns about the said Will and is informed about the details specified in the Will regarding the share of property bequeathed to him/her. If the Legatee remains silent for a period of thirty days after such Will comes to his/her knowledge, he/she shall be deemed to have accepted the Will. Where the Will is burdened with an obligation, the said period of thirty days are extended to a period of fifty days. In case the Legatee has an admissible reason for not being able to reply in the specified period then he may be granted more time on request.
In case the Legatee dies after the death of the Legator but before accepting or rejecting the Will, the Will is to devolve on the heirs of the Legatee. This provision is valid only when the Will is not burdened with obligation(s).
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