Comparative Analysis of Wills in Common Law and Islamic Law, High school final essays of World Religions

Download Comparative Analysis of Wills in Common Law and Islamic Law and more High school final essays World Religions in PDF only on Docsity! A COMPREHENSIVE ANALYSIS OF WILL UNDER COMMON AND ISLAMIC LAW IN NIGERIA ABSTRACT The conceptual divergence in respect of the formation of a valid will under both Islamic and common laws will be examined and discussed. Starting from introduction which will introduce us to the general message of the work. The chapters therein have been divided into five.Chapter one deals with the introduction as mentioned above, and chapter two Cenceptual and theoretical framework and will pre and post Islamic era of Will. Chapter three detail analyze of the comparative Will under Common Law, its position in the common law as well as under the English statute. Chapter four on the other hand, deals with the analytical 1 comparison of what has been discussed in both chapters two and three, while chapter five, as the last chapter will focus on the general remark, summary and conclusion. TABLE OF CONTENTS Certification Dedication Acknowledgement Abstract Table of Contents 2 3.14 Definition of Will under the Common English Law 3.14.1 The Testator 3.14.2 The Legatee 3.15 The Subject Matter of Will– 3.16 Capacity of the Testator 3.17 Features of Common Law 3.18 Analysis of Historical Background of Will Under Islamic Law 3.18.1 Islamic Law 3.81.2 Nature of Will in Pre- Islamic Era 3.18.3 Nature of Will in Post Islamic Era– 3.18.4 Definition of Will in Islamic Law 3.18.5 Concept of a Will under Islamic Law 3.18.6 Essential Elements of Will under Islamic Law 3.18.7 The Testator (Al- Moosiy) Under Islamic Law 3.18.8 Nature of the Will Under Islamic Law‘ ’ 3.18.9 Type of Will in Islamic Law 3.18.10 The Capacity of The Testator 3.18.11 Competence of Legatee 5 3.18.12 The Subject Matter of Will (Al Moosiy Bi- Hi) 3.18.13 Testamentary Capacity 3.18.14 Importance of the Consent 3.18.15 Abatement of Legacies 3.19 Codicil 3.20 Executor of the Will (Al-Wasi Al- Mukhtar) 3.21 Registration of Wills 3.22 Revocation of Will by a Muslim CHAPTER FOUR DETAIL ANALYSIS OF ISSUES 4.0 Introduction 4.1 Analysis under Common Law and Islamic Law 4.2 A Comparative Analysis Of Historical Background 4.3 Analysis of the Comparison Between Islamic Law And Common Law 4.4 A Comparative Analysis of Definition 4.5 Islamic Wills and English Will 4.6 A Comparative Analysis of Essentials CHAPTER FIVE 6 SUMMARY, RECOMMEDATION AND CONCLUSION 5.0 Summary 5.1 Conclusion 5.2 Recommendations CHAPTER ONE INTRODUCTION 7 the concept of Fundamental right is not expressly mentioned in the Quran and Sunnah but there exists a plethora of instances where the term right was used. Thus, an attempt shall be made in this paper at‘ ’ comparing the concept of Fundamental Rights under the common law and the Islamic law, revealing their areas of overlap and differences. The place of the sharia ‘ in the Nigerian legal system and examines the limited jurisdiction of the Shariah Courts of Appeal. It discusses the attempts to extend the Courts jurisdiction and offers’ ways forward in ensuring the efficient administration of sharia ‘ in the Country. The question of the place of Shariah ‘ in the Nigerian legal system has been astutely analysed as an issue that cannot be effectively understood in terms of external models. Rather, it needs to be recognised that Nigeria is a pioneer in building legal pluralism in a democratic context. Both its difficulties and its success in this project will offer an important lesson for the global community. The Nigerian constitution safeguards the freedom of each and every Nigerian to manifest, in observance, their chosen faith. Section 38 (1) of the Constitution states that: every person shall be entitled to… freedom of thought, conscience and religion, and freedom (either… alone or in community with others and in public or in private) to 10 manifest and propagate his religion or belief in worship, teaching, practice and observance. For a Nigerian Muslim, the freedom to manifest faith (in community with others) in worship, practice and observance covers the sharia ‘ as the system of legal rights and duties that Muslims are by definition, under obligation to observe. The importance of sharia ‘ to a Muslim has been explained as the“… epitome of Islamic thought, the most typical manifestation of the Islamic way of life, the core and kernel of Islam itself. 8 The” applicability of the sharia ‘ in Nigeria is underlined by the Supreme Court case of Zaidan v. Mohssen,9 where the Court held that Islamic law and not the customary law of the place of residence governed the estate of a deceased Muslim who died intestate because it is the customary law to which he was subject. The Court held, inter alia, that Islamic law is applicable in Nigeria, and upheld the universality of Islamic law rules. This decision corrected the Supreme Courts attitude as manifested in the earlier case of’ Adesubokan. 1.1 JUSTIFICATION 11 This research is justified having regard to the fact that the 1999 Constitution has recognized Islamic law as one of the three legal systems co-existing in Nigeria. Justice Usman Muhammad J.C.A (as he then was) in the case of Malarima Kalliminta v Alh. Bukar Kori had deprecated the argument of a counsel by calling Islamic procedure in proving paternity as unconstitutional. According to his lordship .....The learned“ counsel for the appellant committed a serious blunder by calling…… the procedure unconstitutional when the constitution itself has recognised Islamic law and its procedure.” 1.2 AIMS AND OBJECTIVES OF STUDY It is the aim of this research to examine and analyze under common law and islamic law and objectives of the research are as follows:- 1. To give a comprehensive analysis of will under Islamic law. 2. To give a comprehensive analysis of will under common law. 3. To analyse the comparative of the application of both law. 1.3 SIGNIFICANT OF THE OF STUDY 12 restriction of testamentary freedom which would be discussed in due course. According to Obilade (1985), Onokah (2003), and Modo et al. (2006), testate succession in Nigeria is governed by both customary (including Islamic) law and statutory (English) law. The Islamic Law of succession and the Wills Law are two bodies of Laws, which have evolved from radically different backgrounds. Islamic Law of succession is based on the divine and universal principles of the Sharia, which govern Muslims all over the world (Coulson 1971, Schacht 1979, Esposito 1991, and Orire 2007). The Wills Law evolved from the English Wills Act, 1837, which is a statute of General Application reflecting the values of the English society with their prescriptions of Christian religion (Imhanobe 2002, Maliki 2005, Gurin 2008). 1.7 CONCLUSION It has been well elaborated and discussed that the fundamental rights as enshrined in the common law is also present and well established in Islam long before the advent of the common law. An attempt has been made in this paper to highlight the statutory and Quranic injunctions governing fundamental rights in both common law and Islamic law, and it has also been clearly shown how this two major legal system overlaps into one another. 1.8 DEFINATION OF TERMS 15 Will : is simply a legal document in which an individual known as the testator, declares how he/she would like his assets to be distributed when he/she dies. The individuals designated to receive any of the property of a testator is called a beneficiary.“ Islamic will : provide a flexibility that allows the testator to distribute up to one-third of their estate as they please, without restriction they have total control and do not– have to follow the rules set out by the Qur'an or Sharia law. This leniency towards one- third of the person's estate is called a bequest. Islamic Law: Sharia, Islamic law, or Sharia law, is a religious law forming part of the Islamic tradition. It is derived from the religious precepts of Islam, particularly the Quran and the hadith Common Law: is the part of English law that is derived from custom and judicial precedent rather than statutes. 16 CHAPTER TWO INTRODUCTION 2.0 CONCEPTUAL FRAMEWORK The conceptual divergence in respect of the formation of a valid will under both Islamic and common laws will be examined and discussed. Starting from introduction which will introduce us to the general message of the work and Pre and post Islamic era of Will were also deals with and will position in the common law as well as under the English statute. Analytical comparison of what has been discussed, while last chapter will focus on the general remark, summary and conclusion. 2.1 THEORETICAL FRAMEWORK 17 Unlike countries of the Romano-Germanic legal family where the principle source of law is a law introduced into operation, in countries of Anglo-Saxon legal family the norm is formulated by judges and expressed in judicial precedent.44English law is based on or acquired a troika structure where common law is the basic source, the law of Equity augmenting and adjusting the basic source and statutory law written law of parliamentary origin.45 Roscoe Pound says in his five volume book on Jurisprudence that for a long time there was much confusion in the use of the legal term source of“ “ law.46 Austin he tells us was the first to call attention to the ambiguity of the phrase” sources of law and to insist on clearness.47 A look at how the United States legal“ ” ” system functions we can??? this by the evolution of the sources of law of the US and their relationships among themselves. 48 They have judicial precedent, legislation, normative legal acts of executive power and the law of equity.49 John Chipman Gray an influential American Jurist has mentioned a few sources of how we can derive the law for the common law legal system. a) Acts of Judicial organs b) Judicial precedents-The American legal system by reason of its roots comes from the English system of common (precedential) law. The fundamental principle thereof is the principle of following judicial precedent. 20 c) Customs-Is of a secondary significance and does not bear comparison with the principal sources of American law although it has played a large role in the origin and evolution of the legal system of the US.50 d) Principles of morality(including the axioms of public policy) Other writers cite: a) Constitutions- And in the US it is the supreme law of the land and the highest authority. b) Administrative Norm- where the creation of agencies of executive power and is constantly growing in importance in American law. Roscoe Pound puts the sources at six he says the legal factors which legal precepts owe their content, the agencies that“ develop them and formulate them as something behind which the law making and law administering authorities may put the state power at six.53 ” a) Usage: Legislatures or courts may take up a matter of usage and give authority of law to a rule or principle or standard which has been worked out and formulated by usage. b) Religion: In modern law, the influence of the cannon law as to pacts upon the continental law as to contracts may be noted. c) Moral and philosophical ideas, especially in equity and natural law: The moral and philosophical tenets of the time not only affect old precepts; they shape or help 21 shape new ones. But they are active direct sources chiefly in the stage of equity and natural law. d) Adjudication: giving rise to a custom or tradition of judicial action as usage is a custom of popular action. e) Scientific discussion: That is discussions by text writers and commentators, to which courts and legislators may give formal authority by embodying them or their results in decisions or in statutes. f) Legislation: the formulation of precepts directly and immediately by the lawmaking organ of the state. Thus legislation may be a source of law and statutes a form. An example he cites is custom as a source of law-customary law, it has been urged that“ legislation, the product, is a form of law, so custom is both source and form.55” Professor Bodenheimer author of the book Jurisprudence: The Philosophy and method of law, divides the sources of law into two categories, formal and non-formal sources.56Formal sources are available in an articulated textual formulation embodied in an authoritative legal document. Those countries which operate under a written” constitution deemed to have the force of law recognize a particular high-level form of legislation which is superior to other ordinary forms of legislation. A constitution is viewed as the fundamental law of the state or country. The highest court of the US has held that guarantees of this character must not be construed as mere moral exhortations addressed to the congress but that they form binding and obligatory norms of law. The 22 alone should suffice as a legal source to justify the process of deduction known as tashri by which he means the state legislation.67 These two views though very” interesting are also very isolated and drowned by the more popular and majority view which are the purposes in Islamic law are known by both reason and revelation. Ghazali and Shatibi , with the latter being credited for having successfully elaborated the purposes of Islamic legal though states that , purposes of law have been determined from the texts, through the process of induction (istiqra) rather than through deduction, this is why the Maqasid are considered qati/definitive.68 Hallaq tells us that the” “ uniqueness of Shatibis theory some scholars have argued stems from the fact that’ Shatibis realizing the failure of law in meeting the challenges of socio-economic’ changes in the 8th/14th C.E Andalusia tried in his theory to answer the particular need of his time by showing how it was possible to adapt the law to the new social conditions..69 Muslim legislators and experts could borrow a leaf from this classical” scholar, who had a forward thinking approach to tackling legal problems of his society. 25 CHPATER THREE DETAIL ANAYLSIS OF COMMON LAW AND ISLAMIC LAW 3.0 INTRODUCTION Common law, also called Anglo-American law, the body of customary law, based upon judicial decisions and embodied in reports of decided cases, From it has evolved the type of legal system now found also in the United States and in most of the member states of the Commonwealth (formerly the British Commonwealth of Nations). In this sense common law stands in contrast to the legal system derived from civil law, now widespread 26 in continental Europe and elsewhere. In another, narrower, sense, common law is contrasted to the rules applied in English and American courts of equity and also to statute law. A standing expository difficulty is that, whereas the United Kingdom is a unitary state in international law, it comprises three major (and other minor) legal systems, those of England and Wales, Scotland, and Northern Ireland. Historically, the common-law system in England (applied to Wales since 1536) has directly influenced that in Ireland but only partially influenced the distinct legal system in Scotland, which is therefore, except as regards international matters, not covered in this article. Beginning in 1973 the legal systems in the United Kingdom experienced integration into the system of European Union (EU) law, which had direct effects upon the domestic law of its constituent statesthe majority of which had— domestic systems that were influenced by the civil-law tradition and that cultivated a more purposive technique of legislative interpretation than was customary in the English common law. However, the United Kingdom exited the EU in 2020. The regime of human rights represented by the European Convention on Human Rights (1950) has exercised a similar influence in the United 27 federal legislative law and the constitutionality of state common law. Additionally, every state has a constitution and the state courts can interpret state legislative law in relation to whether it is constitutional within the constraints of that particular state's constitution. The hierarchy among the different forms of law therefore looks like-state common law-state legislatures-state constitution-federal constitution/Supreme Court. Common law consists of the rules and other doctrine developed gradually by the judges of the English royal courts as the foundation of their decision, and added to over time by judges of those various jurisdictions recognizing the authority of this accumulating doctrine. Law of common jurisdiction applied by these courts. It was during the period between the Norman Conquest of England and the settlement of the American colonies that many of the basic principles that eventually became part of the American system of justice were established. 30 English common law emerged as an integral part of the transformation of England from a loose collection of what were essentially tribal chiefdoms or proto-states to a centrally governed civilization. Common law was primarily oriented not toward protecting individuals from ordinary threats to person and property -but toward maintaining social peace by regulating the economic arrangements characteristic of feudal land tenure and consolidating royal power under this system. 3.2 NATURE OF WILL AT COMMON LAW A will is the legal instrument that permits a person, the testator, to  make decisions on how his estate will be managed and distributed af ter his death. At Common Law, an instrument disposing of Personal Property was called a  "testament," whereas a will disposed of real property. Over time the  distinction has disappeared so that a will, sometimes called a "last w ill and testament," disposes of both real and personal property. If a person does not leave a will, or the will is declared invalid, the p erson will have died intestate, resulting in the distribution of the est 31 ate according to the laws of DescentandDistribution of the state in w hich the person resided. Because of the importance of a will, the law  requires it to have certain elements to be valid. Apart from these ele ments, a will may be ruled invalid if the testator made the will as the  result of UNDUE INFLUENCE, FRAUD, or mistake. A will serves a variety of important purposes. It enables a person to  select his heirs rather than allowing the state laws of descent and di stribution to choose the heirs, who, although blood relatives, might  be people the testator dislikes or with whom he is unacquainted. A  will allows a person to decide which individual could best serve as t he executor of his estate, distributing the property fairly to the bene ficiaries while protecting their interests, rather than allowing a cour t to appoint a stranger to serve as administrator. A will safeguards a  person's right to select an individual to serve as guardian to raise hi s young children in the event of his death. 3.3 NATURE OF WILL UNDER THE STATUTE Much of our law is based on authoritative texts, such as constitutions and statutes. The common law, in contrast, is that part 32 The six essential elements of a valid will are: 1. As a writer of the will, or testator, you must be at least 18 years of age. 2. You must have testamentary capacity, and must state in writing that you are of sound mind and are writing the will of your own accord. 3. A statement declaring the document as your will must be included. 4. An executor should be appointed. 5. The document must contain at least one provision that names a personal guardian for a minor child and/or at least one provision providing for the allocation of your estate. 6. If the will is not written in your handwriting (i.e., typed), you must sign the will and it must be attested to by two witnesses who are not beneficiaries and who saw the will signed by you. The expertise of a practiced probate attorney will make sure your final will and testament is a rock solid legal document. Risks of 35 doing it yourself include: using defective or outdated forms, violations of state law or improper witnessing. Mistakes are may be difficult if not impossible to solve after death. A good probate attorney can help prevent that from happening. 3.5 REQUIREMENTS OF A WILL A valid will cannot exist unless three essential elements are present.  First, there must be a competent testator. Second, the document pu rporting to be a will must meet the execution requirements of statut es, often  called the Statute of Wills, designed to ensure that the document is  not a fraud but is the honest expression of the testator's intention. T hird, it must be clear that the testator intended the document to hav e the legal effect of a will. If a will does not satisfy these requirements, any person who would  have a financial interest in the estate under the laws of descent and  distribution can start an action in the probate court to challenge the  validity of the will. The persons who inherit under the will are propo nents of the will and defend it against such an attack. This proceedi 36 ng is known as a will contest. If the people who oppose the admissio n of the will to probate are successful, the testator's estate will be di stributed according to the laws of descent and distribution or the pr ovisions of an earlier will, depending on the facts of the case. 3.6 COMPETENT TESTATOR  A competent testator is a person who is of sound mind and requisite  age at the  time that he makes the will, not at the date of his death when it take s effect. Anyone over a minimum age, usually 18, is legally capable o f making a will as long as he is competent. A person under the mini mum age dies intestate (regardless of efforts to make a will), and his  property will be distributed according to the  laws of descent and distribution. An individual has testamentary capacity (sound mind) if he is able to  37 requirement. Many states do not recognize as valid a will that is han d written and signed by the testator. In states that do accept such a wi ll, called  a holographic will, it usually must observe the formalities of executi on unless  exempted by statute. Some jurisdictions also require that  Such wills be dated by the testator's hand. Signature A will must be signed by the testator. Any mark, such as  an X,  a zero, a check mark, or a name intended by a competent testator to  be his signature to authenticate the will, is a valid signing. Some sta tes permit another  person to sign a will for a testator at the testator's direction or requ est or with  his consent. Many state statutes require that the testator's signature be at the en d of the will. If it is not, the entire will may be invalidated in those st 40 ates, and the testator's property will pass according to the laws of d escent and distribution. The  testator should sign the will before the witnesses sign, but the rever se order is  usually permissible if all sign as part of a single transaction. Witnesses Statutes require a certain number of witnesses to a will.  Most  require two, although others mandate three. The witnesses sign the  will and  must be able to attest (certify) that the testator was competent at th e time he  made the will. Though there are no formal qualifications for a witnes s, it is  important that a witness not have a financial interest in the will. If a  witness  has an interest, his testimony about the circumstances will be suspe ct because he will profit by its admission to probate. In most states s uch witnesses must  41 either "purge" their interest under the will (forfeit their rights under  the will)  or be barred from testifying, thereby defeating the testator's testam entary plan. If,  however, the witness also would inherit under the laws of descent a nd  distribution should the will be invalidated, he will forfeit only the int erest in  excess of the amount he would receive if the will were voided. Acknowledgment A testator is usually required to publish the willt— hat is, to declare to the witnesses that the instrument is his will. Thi s  declaration is called an Acknowledgment. No state requires, howe ver, that  the witnesses know the contents of the will. Although some states require a testator to sign the will in the prese nce of  witnesses, the majority require only an acknowledgment of the sign ature. If a  42 ude threats of violence or criminal prosecution of the testator, or th e threat to abandon a sick testator. Fraud Fraud differs from undue influence in that the former involve s  Misrepresentation of essential facts to another to persuade him to  make and sign a will that will benefit the person who misrepresents  the facts. The  testator still acts freely in making and signing the will. The two types of fraud are fraud in the execution and fraud in the ind ucement.  When a person is deceived by another as to the character or contents  of the  document he is signing, he is the victim of fraud in the execution. Fra ud in the  execution includes a situation where the contents of the will are knowi ngly  misrepresented to the testator by someone who will benefit from the  45 misrepresentation.Fraud in the inducement occurs when a person kno wingly  makes a will but its terms are based on material misrepresentations of  facts made to the testator by someone who will ultimately benefit.Pers ons deprived of  benefiting under a will because of fraud or undue influence can obtain  relief only by contesting the will. If a court finds fraud or undue influe nce, it may prevent  the wrongdoer from receiving any benefit from the will and may distri bute the  property to those who contested the will. Mistake When a testator intended to execute his will but by mistak e signed  the wrong document, that document will not be enforced. Such mist akes often occur when a HusbandandWife draft mutual wills. The  document that bears the testator's signature does  not represent his testamentary intent, and therefore his property ca nnot be  46 distributed according to its terms. 3. 9 SPECIAL TYPES OF WILLS Some states have statutes that recognize certain kinds of wills that  are executed with less formality than ordinary wills, but only when t he wills are made under circumstances that reduce the possibility of  fraud. i. Holographic Wills A holographic will is completely written an d signed in the handwriting of the testator, such as a letter that  specifically discusses his intended distribution of the estate aft er his death. Many states do not recognize the validity of holog raphic wills, and those that do require that the formalities of ex ecution be followed. ii. Nuncupative Wills A nuncupative will is an oral will. Most sta tes do  not recognize the validity of such wills because of the greater likelih ood of fraudbut those that do impose certain requirements. The will  must be made during  47 a new will that completely revokes an earlier will indicates the testa tor's intent  to revoke the will. Statements made by a person at or near the time that he intentionall y destroys his will by burning, mutilating, or tearing it clearly demo nstrate his intent to  revoke. Sometimes revocation occurs by operation of law, as in the case of a  marriage, Divorce, birth of a child, or the sale of property devised i n the will, which  automatically changes the legal duties of the testator. Many states p rovide that when a testator and spouse have been divorced but the t estator's will has not  been revised since the change in marital status, any disposition to th e former  spouse is revoked. 50 3.11PROTECTION OF THE FAMILY The desire of society to protect the spouse and children of a decede nt is a major reason both for allowing testamentary disposition of pr operty and for placing  limitations upon the freedom of testators. Surviving Spouse Three statutory approaches have developed to p rotect the surviving spouse against disinheritance: Dower or curtes y, the elective share, and Community Property. Dower or curtesy At common law, a wife was entitled to dower, a lif e interest in one third of the land owned by her husband during the marriage. Curtesy  was the right of a husband to a life interest in all of his wife's lands.  Most states have abolished commonlaw dower and curtesy and have  enacted laws that treat husband and wife identically. Some statutes s ubject dower and curtesy to payment of debts, and others extend rig hts to personal property as well as land. Some states allow dower or  51 curtesy in addition to testamentary provisions, though in other states  dower and curtesy are in lieu of testamentary provisions. Elective share Although a testator can dispose of his property as h e wishes,  the law recognizes that the surviving spouse, who has usually contri buted to  the accumulation of property during the marriage, is entitled to a sh are in the  property. Otherwise, that spouse might ultimately become dependen t on the  state. For this reason, the elective share was created by statute in st ates that do not have community property. Most states have statutes allowing a surviving spouse to elect either  a statutory share (usually one-third of the estate if children survive,  one half otherwise), which is the share that the spouse would have recei ved if the  decedent had died intestate, or the provision made in the spouse's w ill.  52 children, grandchildren, parents, and spouse, survive. Charitable gifts are limited in certain ways. For example, the amoun t of the gift can be limited to a certain proportion of the estate, usua lly 50 percent. Some  states prohibit deathbed gifts to charity by invalidating gifts that a t estator  makes within a specified period before death. 3.13 ADEMPTION AND ABATEMENT ADEMPTION  is where a person makes a declaration in his will to leave some prop erty to another and then reneges on the declaration, either by chang ing the property or removing it from the estate. Abatement is the pr ocess of determining the order in which property in the estate will b e applied to the payment of debts, taxes, and expenses. The gifts that a person is to receive under a will are usually classifie d according to their nature for purposes of ademption and abatemen t.  55 When specific devises and bequests are no longer in the estate or ha ve been substantially changed in character at the time of the testato r's death, this is called ademption by extinction, and it occurs irresp ective of the testator's intent. If a  testator specifically provides in his will that the beneficiary will rece ive his gold watch, but the watch is stolen prior to his death, the gift  adeems and the  beneficiary is not entitled to anything, including any insurance paym ents made to the estate as reimbursement for the loss of the watch. Ademption by satisfaction occurs when the testator, during his lifeti me, gives  to his intended beneficiary all or part of a gift that he had intended t o give the  beneficiary in her will. The intention of the testator is an essential el ement.  Ademption by satisfaction applies to general as well as specific lega cies. If the  56 subject matter of a gift made during the lifetime of a testator is the s ame as that specified in a testamentary provision, it is presumed tha t the gift is in lieu of  the testamentary gift where there is a parent-child or grandparent- parent relationship. In the abatement process, the intention of the testator, if expressed  in the will, governs the order in which property will abate to pay tax es, debts, and expenses. Where the will is silent, the following order  is usually applied: residuary gifts, general bequests, demonstrative  bequests, and specific bequests and devises. 3.14DEFINITION OF WILL UNDER THE COMMON ENGLISH LAW A will is the legal instrument that permits a person, the testator, to  make decisions on how his estate will be managed and distributed af ter his death.  At Common Law, an instrument disposing of PersonalProperty was called a 57  Testacy means the status of being testate, hat is, having executed a will. The property of such a person goes through the probate process.  Intestacy means the status of not having made a will, or to have died without a valid will. The estate of a person who dies intestate, undergoes administration, rather than probate.  The attestation clause of a will is where the witnesses to a will attest to certain facts concerning the making of the will by the testator, and where they sign their names as witnesses 3.14.2 THE LEGATEE LEGATES. Legates are extraordinary ambassadors sent by the pope to catholic countries to represent him, and to exercise his jurisdiction. They are distinguished from the ambassadors of the pope who are sent to other powers. 2. The canonists divide them into three kinds, namely: 1. Legates A latere. 60 2. Legati missi. 3. Legati nati. Legates latere hold the first rank among those who are honored by a legation; they are always chosen from the college of cardinals, and are called a latere, in imitation of the magistrates of ancient Rome, who were taken from the court, or side of the emperor. 4. The legati missi are simple envoys. 5. The legati nati, are those who are entitled to be legates by birth. 3.15THE SUBJECT MATTER OF WILL– Any kind of property, movable or immovable, corporeal or incorporeal, may be the subject-matter of a will. A testator may make a will of any property subject to two conditions: (i) The property is owned by the testator at the time of his death, and 61 (ii) The property is transferable. The property which is bequeathed under a will may or may not exist at the time of making of the will but, it must exist and must be in the ownership of the testator at the time of his death. The reason is simple. A will operates only after the death of the testator. That is to say, the transfer of property under a will takes place from the moment of testators death, not from the’ date on which the will was made. For example, A makes a will of his all properties in favour of B. At the time of making of the will A has only a house. After sometime a purchase a garden and when he dies, he owns the house as well as the garden. В is entitled to get the house as well as the garden under the will although the garden was not owned by A when the will was executed. 3.16CAPACITY OF THE TESTATOR Testamentary capacity is the legal term used to describe a person's legal and mental ability to make or alter a valid will. The test for capacity to execute a valid will is based in case law. A testator must:  Understand the nature of making a will and its effects. 62 was only ever intended to enable the court to make decisions for living, incapable persons, and not deceased testators. Moreover, the threshold for testamentary capacity has traditionally been kept low so as to allow older people to make a will in their declining years, and it was unlikely that parliament would have reversed this policy without announcing the fact. Thus it was concluded that the Mental Capacity Act does not override or modify existing case law, and Banks v Goodfellow and its successors remain in effect. So when assessing capacity to make a will, practitioners should remember that the modern practical approach to the case law, to consider the testator's potential to understand and make decisions, does not focus exclusively on their actual understanding. Moreover, bear in mind that it is not a memory test; testators can have a poor memory, yet still have capacity. Finally, the testator may be capable of assessing the information and understanding it, but can choose not to do so and still have capacity. 3.17FEATURES OF A COMMON LAW 65 system include:  There is not always a written constitution or codified laws;  Judicial decisions are binding decisions of the highest court– can generally only be overturned by that same court or through legislation;  Extensive freedom of contract - few provisions are implied into the contract by law (although provisions seeking to protect private consumers may be implied);  Generally, everything is permitted that is not expressly prohibited by law. A common law system is less prescriptive than a civil law system. A government may therefore wish to enshrine protections of its citizens in specific legislation related to the infrastructure program being contemplated. For example, it may wish to prohibit the service provider from cutting off the water or electricity supply of bad payers or may require that documents related to the transaction be disclosed under a freedom of information act. There may also be legal requirements to imply into a contract in equal bargaining provisions where one party is in a much stronger bargaining position than the other. There are few provisions implied into a 66 contract under the common law system it is therefore important to– set out ALL the terms governing the relationship between the parties to a contract in the contract itself. This will often result in a contract being longer than one in a civil law country. 3.18ANALYSIS OF HISTORICAL BACKGROUND OF WILL UNDER ISLAMIC LAW The primary sources of Islamic law are the Holy Book (The Quran), The Sunnah (the traditions or known practices of the Prophet Muhammad ), Ijma' (Consensus), and Qiyas (Analogy) Before Islam, the nomadic tribes inhabiting the Arabian peninsula worshiped idols. These tribes frequently fought with one another. Each tribe had its own customs governing marriage, hospitality, and revenge. Crimes against persons were answered with personal retribution or were sometimes resolved by an arbitrator. Muhammad introduced a new religion into this chaotic Arab world. Islam affirmed only one true God. It demanded that believers obey Gods will and laws.’ 67 elude the judge, he should then look to the consensus of Muslim legal scholars on the matter. Still failing to find a solution, the judge could form his own answer by analogy from the precedent nearest“ in resemblance and most appropriate to the case at hand. Shafii” provoked controversy. He constantly criticized what he called people of reason and people of tradition. While speaking in Egypt in“ ” “ ” 820, he was physically attacked by enraged opponents and died a few days later. Nevertheless, Shafiis approach was later widely’ adopted throughout the Islamic world. By around the year 900, the classic Sharia had taken shape. Islamic specialists in the law assembled handbooks for judges to use in making their decisions. The classic Sharia was not a code of laws, but a body of religious and legal scholarship that continued to develop for the next 1,000 years. The following sections illustrate some basic features of Islamic law as it was traditionally applied. 3.18.1 ISLAMIC LAW Quran is the basis of Islamic law; it provides authority for Islamic’ legislation. Quran literally means reading or recitation. Technically it’ ‘ ’ 70 may be defined as: The words of Allah revealed unto Prophet Muhammad Ibn Abdullahi, through angel Jibril in Arabic language, so that it would be an authority to show the authenticity of his Prophethood, messengership and a Constitution for the entire Muslims to serve as guidance to them in the worship of Allah by way of rehearsing it; it is recorded in the holy Book, which begins with Suratul Fatihah and ends with Sura al-Nas, transmitted to us through transmission and it is protected against any alteration or changes There are 114 suras (chapters) and 6235 (ayat) of unequal length in the Quran. Each chapter has a separate title. The contents of Quran’ ’ are not classified subject wise. The verses on various topics appear in unexpected places and no particular order can be ascertained in the sequence of its texts38. To give just a few examples, the command’ concerning prayer appears in the second verse. In the midst of other verses which relate to the subject of divorce (al Baqarah) 2:228 248).– In the same verse, there are rules which relate to wine drinking, apostasy and war, followed by passages concerning the treatment of orphans and the marriage of unbelieving women (al Baqarah, 216). Similarly the verse relating to pilgrimage occurs both in chapter al- Baqarah (196 203) and chapter al-Hajj (22: 26 27). Rules on– – 71 marriage, divorce and revocation are found in the chapter al- Baqarah, al-Talaq, and Nisa.i39 The Quran deals with different subjects and only’ a small part of it deals with what is purely law. Rules relating to non ritualistic matters in the holy Quran in legal parlance are referred to’ as Muamalat, in contemporary times these rules’ (Muamalat) vary according to the purpose for which they are used.40 The holy Quran deals with rules of Islamic personal law/status’ (Ahkamul Ahwalul Shakhsiyyah) in about seventy verses. Civil rules (al- ahkamul madaniyya) is also a subject the Quran deals with, it’ regulates relationship between individuals and their transactions such as sale, hire, mortgage, pledges, surety, company, loan, etc. Another set of rules contained in the holy Quran is: criminal rules, these rules’ deal with crimes, punishment which aim at protecting sanctity of human life property, dignity and rights. Criminal rules also define the relationship between victim, culprit and society, about thirty verses can be found in the Quran dealing with these types of rules.’ 3.81.2 NATURE OF WILL IN PRE- ISLAMIC ERA In the Jahiliyah period, before the advent of Islam that is Pre-Islamic Arabia which also refers to the Arabian Peninsula prior. Some of the 72 were locked up in ceaseless warfare. War was a permanent institution of the Arabian society. The desert could support only a limited number of people, and the state of inter-tribal war maintained a rigid control over the growth of population. But the Arabs themselves did not see war in this light. To them, war was a pastime or rather a dangerous sport, or a species of tribal drama, waged by professionals, according to old and gallant codes, while the audience cheered. Eternal peace held no appeal for them, and“ ” war provided an escape from drudgery and from the monotony of life in the desert. They, therefore, courted the excitement of the clash of arms. War gave them an opportunity to display their skills at archery, fencing and horsemanship, and also, in war, they could distinguish themselves by their heroism and at the same time win glory and honor for their tribes. In many cases, the Arabs fought for the sake of fighting, whether or not there was a cause belli 3.18.3 NATURE OF WILL IN POST ISLAMIC ERA– In the 19th century, many Muslim countries came under the control or influence of Western colonial powers. As a result, Western-style laws, courts, and punishments began to appear within the Sharia. 75 Some countries like Turkey totally abandoned the Sharia and adopted new law codes based on European systems. Most Muslim countries put the government in charge of prosecuting and punishing criminal acts. In the area of family law, many countries prohibited polygamy and divorce by the husbands repudiation of his’ wife. Modern legislation along with Muslim legal scholars who are attempting to relate the will of Allah to the 20th century have reopened the door to interpreting the Sharia. This has happened even in highly traditional Saudi Arabia, where Islam began. Since 1980, some countries with fundamentalist Islamic regimes like Iran have attempted to reverse the trend of westernization and return to the classic Sharia. But most Muslim legal scholars today believe that the Sharia can be adapted to modern conditions without abandoning the spirit of Islamic law or its religious foundations. Even in countries like Iran and Saudi Arabia, the Sharia is creatively adapted to new circumstances. 3.18.4 DEFINITION OF WILL IN ISLAMIC LAW The testamentary document called the will is referred to as Wasiyat .Will or Wasiyat is a document made by the legator in favour of 76 legatee which becomes effective after the death of the legator. Under Muslim law no person is entitled to make will of the whole property. Limitations are imposed in making will. The reason being to pay the respect to the word of prophet in order to ensure the shares of the legal heirs. In case of will of absolute property nothing will remain for all sharers prescribed under Muslim Law. Wills are declared lawful in the Quran, though the Quran itself does not provide for the testamentary restriction of one-third. The permissibility of bequests up to one-third is traced to a Hadis of the Propeht which ahs been stated by Sad Ibn Abi Waqqas and reported by Bukhari.’ 3.18.5 CONCEPT OF A WILL UNDER ISLAMIC LAW When a Muslim dies there are four duties which need to be performed. These are: 1. Payment of funeral expenses 2. Payment of his/her debts 3. Execution his/her will 77 invested in accordance with the Sharia of Islam, following the’ fiqh of the madhhab of Imam ., and after all or any funeral…………… expenses, debts, taxes and professional and testamentary expenses have been paid out of my estate by my executors they shall hold what remains of my estate on trust to be distributed in accordance with the following provisions: ” 2. The clause(s) which deal with the up to one third of the estate‘ bequests; ’ 3. The clause(s) which deal with the at least two thirds of the‘ estate fixed shares; ’ 4. A residuary clause dealing with what should happen to the estate if there are no surviving relatives and also what should happen if any part of the Will fails for any reason; (v) a clause dealing with how any minors shares should be held on trust’ and invested and expended for the childs maintenance,’ education or benefit; 5. An (optional) clause in which the testator passes on a last message or general advice or requests to his or her beneficiaries. 6. A clause dealing with funeral arrangements. 80 3.18.7 THE TESTATOR (AL- MOOSIY) UNDER ISLAMIC LAW The one who makes a will (wasiyya) is called a testator (al-musi). The one on whose behalf a will is made is generally referred to as a legatee (al-musa lahu). The following terms are important to note in terms of wills: 1. Testator:-The person, who makes/creates a will. 2. Legatee:- The person/persons, in whose favour, the will is created. 3. Legacy:- The subject matter of the will. It is the property to be distributed among the heirs. 4. Executor:- The testator, while executing the will, may appoint a person to execute the will in accordance with its contents (after his death). In the absence of the appointment of Executor by the testator, the Court may appoint a person called 'Administrator' to execute thee will. Ameer Ali1 says a will from the Mussalman point of view is a divine“ institution since its exercise is regulated by the Quran. At the same” 81 time the Prophet declared that the power should not be exercised to the injury of the lawful heirs. Tyabji says that a will means the legal“ declaration of the intentions of a Muslim with respect to his property which he desires to be carried into effect after his death. ” The ancient texts in Muhammaden law definitely dealt with wills. The leading authority on the subject of wills is the Hedaya which was composed by Sheikh Burhan Ud-din Ali. According to the Hedaya, a will is the endowment with the property of anything after“ death. A will confers a right to property in a specific thing or in a” profit or advantage in the manner of a gratuity postponed till after the death of a testator. The fundamental idea of a will is that the testator should thereby dispose of his property or such part thereof as his personal law permits him to bequeath by Will. Under pure Islamic Law a will is purported to direct that after the testators’ death a certain task be completed or that a portion of his property be given in ownership to someone or that the ownership of testators’ property be transferred to someone or that it be spent for charitable purposes or the person making a will may appoint some person as guardian of his children and dependants. 82 6. Will must be proved with the greatest possible exactness. On the other hand, in case of a written will, there should be two witnesses to the declaration of the will. If the testator fails to mention the quantity or amount of bequeathed property, regard may be given to the number or quantity owned by the testator at the time of death. The will is executed after payment of debts and funeral expenses. The majority view is that debts to Allah such as zakh and obligatory expiation should be paid whether mentioned in the will or not. However, there is difference of opinion on this matter amongst the Muslim jurists. For a will to be valid, the following conditions are to be satisfied. 1. Capacity/Competence of Testator; 2. Competence of Legatee; 3. Subject Matter: 4. Testamentary Capacity. 3.18.10 THE CAPACITY OF THE TESTATOR According to Muslim Law, a testator or legator has to fulfil the following conditions: age of majority, validity of gifts made by guardians, validity of a person who has attempted suicide and 85 soundness of mind. According to Muslim Law, the age of Majority is 15 years. It may be noted that under Shia law, age of majority is not a condition precedent for making a will.. A Shiite who is ten years old is thus exempt from the Act and has discretion and is competent to create a will. There is no expression provision in the Act which excludes the operation of law for Shia Mulsims. The Shafi School of Sunni Law has prescribed certain conditions: i. A person who is capable of duties can make a valid will ii. A person who is under inhibition on account of insanity cannot make a will iii. A person who is not on his senses cannot make a will iv. will made by a child is also not valid. However there is a difference in opinion among Muslim Law Scholars. However, under Muslim law, a will cannot be made by the guardian on behalf of the minor or insane person and it will be treated as void. A will made by a person when he was a minor but after attaining majority he ratified the same will be treated as valid. Under Shia Law, a will made after the testator who was injured by his own actions or tried to commit suicide, such a will is declared as invalid. In Mazhar Hussain v Bodha Bibi6 it was held that a will of 86 suicide is valid when made in contemplation of taking poison but before poison was actually taken, onus of proving that the will was written afterwards rests on party impugning with. Tyabji says that a“ will made by a testator whose mind is unsound does not become valid by his subsequently becoming of sound mind. A will made by a person while of sound mind becomes invalid if the testator subsequently becomes permanently of unsound mind. ” 3.18.11 COMPETENCE OF LEGATEE Any person having capacity to hold the property can be a legatee. The Legatee may be a Muslim or a Non-Muslim who is not hostile towards Islam, man or woman, a major or a minor or even a child in the womb provided the child is born within 6 months of the death of the testator. A person who renounces Islam cannot be a competent legatee. An institution is also a valid legatee. In the general sense, the institution should not be hostile towards Islam and not promote anti-Islamic activities. A will in favour of a Hindu temple or a society that propagates another religion will not be a valid will. Where a legatee under a will is responsible for the murder or causing death to the testator, the will made in his or her favour will be invalid 87 consent of the other heirs. Thus, the testamentary capacity of a Muslim is cut down by two principal limitations: a. As to quantum where he cannot bequeath more than one-third of his net estate. b. As to the legatees where he cannot bequeath to his own heirs. 3.18.14 IMPORTANCE OF THE CONSENT Under Sunni Islamic law the power of the testator is limited in two ways: firstly, he or she cannot bequest more than 1/3 of the totally property unless the other heirs consent to the bequest or there are no legal heirs at all or the only legal heir is the spouse who gets his/her legal share and the residue can be bequeathed and secondly, the testator cannot make a bequest in favour of a legal heir under traditional Sunni Muslim law. Here consent must be given at the time of the operation of the Will, that is, after the death of the testator. There are two exceptions to the one-third rule: a. When the testator does not have any heir. In such cases, if the restriction of permissible one-third is applied, then the 90 beneficiary is the Government who will take the property by doctrine of Escheat, while the primary purpose of applying the bequeathable permissibility to the extent of one-third is to protect the rights of the heirs, and not that of the Government. An heirless person can thus make a bequest of the total property. b. Where the heirs themselves consent to the bequest in excess of one-third. As the chief objective is to safeguard the interests of theirs, the excess bequest can be validated by consent. Under Shia Law, the bequest in favour of an heir is valid without consent of other heirs provided it does not exceed the bequeathable one-third limit. If it is in excess of the one-third, then the consent of those heirs is necessary whose share is likely to be affected by the bequest. The consenting heirs must be majors, sane and not insolvent in law to be considered as valid consent. The consent given by the heirs may be expressed or implied. It may be oral or in writing. It can also be implied from conduct. Mere silence or inaction would not be taken as 91 consent even if heirs were present at the time of the proceedings for effecting the names in the Will. Where a will is executed in writing and is attested by the testators heirs it is sufficient proof of their’ consenting to the act of the testator. Where the testator makes a bequest in favour of an heir and on his death, the other heirs help the legatee in effecting a mutation in name or allow the heir to take exclusive possession of the property it is proof of the heirs consent.’ Under Shia Law, the consent of heirs whose shares are adversely affected can be given before or after the death of the testator and under Sunni Law, it must be given after the testators death.’ But once the consent is give, it cannot be rescinded subsequently and the heirs are bound by it. Similarly, consent cannot be given after an heir has previously repudiated it. The legacy in favour of an heir can be validated by obtaining the consent of one or some of the heirs or even all of them collectively. Where all the heirs give their consent the legacy is valid to the extent of the shares of all. Where only one or some of them give their consent the legacy would be valid only to the extent of the heirs shares. In the case of ’ Gulam Mohammed v Gulam Hussain10, the Privy Council held that a 92 become inapplicable. In such cases, the spouse shall take the whole property. The rule of bequeathable third shall have no application if no heir has survived the legator. If a Muslim bequest more than one- third of the property and the heirs does not consent to the same, the shares are reduced proportionately to bring it down to one-third. Bequests for pious purposes have no precedence over secular purposes, and are decreased proportionately. Bequests for pious purposes are classified into three categories: a. Bequest for faraiz, that is, purposes expressly ordained in the Koran viz. hajj, zakat and expiation for prayers missed by a Muslim. b. Bequest for waji-bait, that is, purposes not expressly ordained in the Koran, but which are proper such as charity given for breaking rozas. c. Bequest for nawafali, that is, purposes-deemed pious by the testator, viz. bequest for constructing a mosque, inn for travellers or bequest to poor. The bequests of the first category take precedence over bequests of the second and the third category and bequests of the second category take precedence over those of the third. 95 An example under the Rule or Rateable Proportion: If a Muslim Man executes a Will giving Rs.30,000 to A and Rs. 20,000 to B. He leaves behind property that comes up to Rs.75,000 after payment of funeral expenses. Here the bequeathable limit would be one-third, which would be Rs.25,000 while the bequest in the will at the moment is Rs.50,000. The bequest in favour of A and B will be proportionately reduced. The ratio of the bequest will be the same but both bequests will be reduced to half, that is, the bequest due to A would become Rs. 15,000 and that of B would be Rs.10,000. The sum total would then byRs.25,000 which would make it valid. 2. Under Shia Law, the principle of rate able abatement is not applicable and the bequests made prior in date take priority over those later in date. But if the bequest is made by the same will, the latter bequest would be a revocation of an earlier bequest. This is called the Rule of Chronological Priority. The legatee whose name appears first in the Will is to be given his or her share, followed by the second legatee and then the third and so on. The moment the bequeathable one-third is 96 exhausted full effect has been given to the Will. Any other legatee whose name follows after the one-third of the assets has been distributed will not receive anything. The rule of chronological priority is not applicable in cases where under one legacy two or more persons have been an exact one-third of the total assets. In such cases, the legatee whose name appears last gets the one-third given to him under the Will, and the legatees whose names appear prior to him will not get anything 3.19CODICIL Codicil means an instrument made in relation to a will and explaining, altering or adding to its dispositions and shall be deemed to form part of the will. The codicil is generally made to make slight changes in the will, which has already been executed. A codicil cannot alter a will more than what is necessary to carry out the testator's intention as evidenced by the will and the codicil. 3.20EXECUTOR OF THE WILL (AL-WASI AL- MUKHTAR) 97