A will is a legal undertaking by one person in which he entitles other individual to take care of the property and the same is transferred after his death. Transfer of property under Sharia law is a bit tricky and should be understood properly. This is because of the reason that Muslims living in India who want to donate their assets are governed by Sharia law and not by transfer of property act. The willingness of a person to transfer a property is the first and foremost condition for any transfer, having said that there are some situations that are similar to property act. A person who is creating a will should do that rationally i.e. in a sound mind no matter whichever law is applied.
Now, here are some elements you should consider if you are interested in transferring your ownership to other person through Sharia law:
Age of the person:
The age of majority for a person who is creating a will under Muslim law is 15 years unlike other Indian laws which consider 18 years as the majority age. The age of majority is extended to 21 years in case a legal guardian is appointed by the court.
When is the Sharia law not applicable on property transfer?
It is not applicable when the marriage of a person was under Special Marriages Act, 1954. In such a case, the Indian Succession Act 1925 will apply on that person and the procedure to be followed will be as per the later act.
Any immovable or movable property that was in existence at the time of transfer and that can be transferred at the death of the person is treated for consideration. Here the transferor of the property is known as testator. The property can be incorporeal or corporeal; it doesn’t matter under Sharia law.
To whom the property can be transferred:
The law has stated that religion doesn’t matter when it comes to shifting of ownership. The transfer can be made to any person. The individual in whose favor will is created is known as the legatee. He can be of any age, whether major or minor.
The law is flexible that the legatee can be a male or female. It has also been stated that the property transfer can be to a child who is in the womb of her mother. Under Sunni law, the child should be born within six months after the death of testator while the period is ten months under Shia law.
There is also provision of bigamy which says that in case of more than one wife, the property will be distributed among each wife in equal proportions. In no case the Muslim wife will be disowned from the property.
Is there any prescribed format?
The answer is no, there is no prescribed format by the law that can be used to take care of the will. Infact, the compulsions of other law which say that will of a person must be in writing doesn’t hold ground here. The will should also be recited orally in the case of Sharia law. The only point to note is that the onus of proving lies on the legatee of the will. He will have to prove that the process of transfer was fair and free from any coercion.
As there is no prescribed format of the will, in case a person wants to make it in writing, it is advised that he should get it on a stamp paper and attest it as the general will is prepared.
Cancellation of the will:
For the revocation of the will, same law applies as in the case of creation of the document. The will can be revoked by the testator either orally or in writing. The Sharia law is in this way quite simple and straight in that sense. It is the right of the person making the will to cancel it at any point of time either by orally or writing. He can also transfer the property to a third party at any point if he wants to change the original decision.
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