Conditional and Contingent Wills under Muslim Law

The condition so attached need not be fulfilled and the legatee gets absolute unconditional interest in the property bequeathed to him. For example, a Muslim makes a will of his properties to a stranger. The will contains a condition that the legatee cannot sell the property. The will is valid and enforceable and the legatee gets unconditional interest in the property; he is not bound by the condition.

Similarly, a Muslim makes a bequest in favour of A subject to condition that upon the death of this legatee, the property would pass on to B. Here, A would take the property absolutely as if no condition at all was attached in the bequest. The result would be that after the death of A, property would be inherited by A’s legal heirs and  would not get anything because the condition under which he had to get, is void.

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Bequest for Life:

It is relevant to note that like a gift, a bequest is also a transfer of absolute interest. Any condition which derogates from completeness of the grant is void. Accordingly, under Sunni law, where a Sunni testator makes a will in which he gives ‘life-interest’ to a legatee, the condition of ‘for life’ is void but the will is valid. The result is that the legatee gets absolute interest in respect of the property bequeathed to him. But, under the Shia law, a will for the life of legatee is possible.

Where a Shia testator makes any will for the life of a legatee, the will as such and also the condition that it is only a life-interest, both are valid. As discussed earlier in the case of Nawazish Ali Khan v. Ali Raza Khan, a bequest of successive life interests by a Shia testator was held valid and enforceable. However, it is submitted that under Shia law too any other type of condition- is not valid and is, therefore, not enforceable.

Contingent Will:

A contingent will is void. That is to say, where the vesting of interest in a legatee depends upon some uncertain future event, the will is void and does not operate. The legatee would not get any property even though the contingency happens.

The basic feature of a transaction by way of will is that the interest in the bequeathed property vests in a legatee only upon the death of the testator. Therefore, nothing except the event of testator’s death may cause vesting of interest in favour of a legatee.

However, an alternative bequest is valid. In an alternative bequest, the testator gives his property to a legatee but also provides that if that legatee does not survive him then the property is to be given to the second legatee. Now, in case the first legatee survives the testator, he would get the property. But, if he dies before the testator’s death, the will in his favour fails and the property is given to the second legatee.

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