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
(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.
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ADVERTISEMENTS:
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 testator’s 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.
Will of Usufruct:
Under Muslim law, it is possible that a will is made only of the usufruct of a property. That is to say, a testator may make a will only of the produce or the benefits. In such cases, the legatee is entitled to get only the benefits of the property and has no right over the corpus.
ADVERTISEMENTS:
The bequest of usufruct of a property in favour of a legatee may be for a limited period or for the life of that legatee. The result would be that after the death of the testator, the corpus would be inherited by the legal heirs of the testator whereas; the benefits or the produce of the property would go to the legatee. Tyabji observes:
“The right to occupy a house during a future period of time or to take the rents or future produce or usufruct for part of the rents, produce or usufruct) of movable or other property for a limited time, or for life time of the legatee, may validly be the subject-matter of a bequest.”
Thus, if a testator makes a will for the right of rent of a house to a legatee then, after the death of the testator, the legatee is entitled only to the rent, he cannot live in that house. Similarly, where right to occupy a house for a limited period has been bequeathed, the legatee can only live and has no other right in respect of that property; other rights pertaining to it e.g. right to maintain or manage the house, would be exercised by the legal heirs of the testator.
Will of Life-interest:
As discussed earlier, corpus and usufruct of a property are separable for purposes of disposition. Accordingly, under Muslim law, it is possible that a testator makes will of the corpus to one person and of its usufruct to another.
ADVERTISEMENTS:
Under a will, the property as such may be given to A, whereas its produce or benefits may go to another legatee В, either for a fixed duration or for the life of B. Under Muslim law, the life-interest may be a lawful subject-matter of a will. In a will of life-interest the legatee has right only over the usufruct of the property during his (her) life.