Professional Documents
Culture Documents
Wasiyat
Wasiyat
ii.
iii.
A bequest that is to take effect only upon any uncertain event happening is a
contingent bequest, and is void. However, a bequest with a condition that
derogates from its completeness is valid and will take effect as if the condition
did not exist. For example, a grant is made to X for his life and then it is
stipulated to go to Y after death of X. In this case, X will get the grant
completely and Y will get nothing. Thus, a bequest of life estate is not valid
either under Shia or Sunni Law.
4. Extent of power of will –
The testamentary power of a Muslim is limited in two ways –
Limitations as regards to person - The general rule is laid down in Ghulam
Mohammad vs Ghulam Hussain 1932 by Allahbad HC, that a bequest in favour of a
heir is not valid unless the other heirs consent to the bequest after the death of
the
testator. Whether a person is a heir or not is determined at the time of testator's
death.
Under Shia law, a testator may bequest a heir as long as it does not exceed one
third
of his property and no consent of other heirs is required. If all the property was
bequested to one heir and other was not given anything, the bequest was void in its
entirety.
Limitations as regard to the quantum (amount) - The general principle is that a
Muslim is not allowed to will more than 1/3rd of his property after taking out
funeral
charges and debt. However, under Hanafi law, it may be valid if heirs give the
consent
after the death of the testator. In Shia law, such consent can be taken either
before or
after the death. Another exception is that if the testator has no heir, he can will
any
amount. The govt. cannot act as a heir to the heirless person.
A Muslim cannot bequest his property in favour of own heir, unless the other heirs
consent to the bequest after the death of the testator. The person should be heir
at the
time of the death of the testator. But, under Shia Law, a testator may bequest in
favour of his heir so long as it does not exceed one third of his estate and such
bequest
is valid even without the consent of the other heirs. The consent can be given
before
or after the death of the testator. But, if the entire estate is bequeathed to heir
excluding other heirs entirely from inheritance, the bequest will be void in its
entirety.
Bequeathable one-third:
The bequeathable one-third means a third of the estate of a testator as it is left
after the
payment of his funeral expenses, debts and other charges. The law in this respect
may
be stated thus:
(i) All schools of Muslim law, except the Ithana Ashari School, hold that the
bequest
of more than the bequethable one-third is invalid unless consented to by the heirs
after
the death of the testator. Consent can be inferred from the conduct.
Mere silence by other heirs by not participating in the concerned proceedings and
by
remaining ex parte cannot be considered as implied consent.
(ii) According to the Ithana Ashari School, the consent of the heirs, to validate a
bequest of more than one-third, may be given even during the life time of the
testator,
and it does not need ratification after the death of the testator.
The Ithana Asharis also hold that a bequest of any part of the estate even more
than
bequeathable one third may be made for the performance of the obligatory religious
duties or by way of muzaribat or qeraz (both words have the same meaning, an
enterprise in which one invests his capital and another his labour with mutual
participation in profit is known as mazari bat or qeraz) on the terms of equal
division
of profits between the legatee and the heirs.
(iii) Under a valid custom, a Muslim may be allowed to dispose of his entire
property
under his will. The Shariat Act, 1937 does not apply to wills, and, therefore, a
Muslim, who has the power to dispose of his entire property under a will, can do so
even now. (See Chapter I of this work for details).
(iv) If a testator has no heirs, he may dispose of his entire property by a will.
The right
of the State to take the property by escheat does not prevent an heirless testator
from
bequeathing his entire property.
(v) A bequest of more than one-third may be validated by the consent of heirs. The
rationale behind this rule is that the limitation on the testator’s power of
disposition is
solely for the benefit of the heirs, and if they want to forego the benefit, they
are free
to do so.
The consent of heirs may be express or implied. For instance, P bequeaths his
entire
property in favour of X, a stranger. The will is attested by P’s two sons, A and B,
who
are the only heirs.
After P’s death X enters into possession of the property and recovers rents with
the
full knowledge of A and B. These facts are sufficient to indicate the implied
consent
on the part of A and B. Consent once given cannot be rescinded.
(vi) Where a testator dies leaving behind only a wife/husband as the sole heir and
no
blood relations, then if the testator is a male, he can bequeath 5/6 of his estate,
and if
the testator is a female, she can bequeath 2/3 of the estate. For instance, a
Muslim
woman makes a will under which she bequeaths one-half of her properties to her
husband. She dies leaving behind her husband and no blood relation.
Under Muslim law, bequests to the heir upto 1/3 of property are valid. Thus, the
husband will take 1/3 of the estate (the bequeathable 1/3 under the will and 1/2 of
the
remaining as an heir. In all he takes 2/3—1/3 under the will and 1/3 as an heir).
Ordinarily, the remaining 1/3 will go to the State by escheat, but on account of
the
bequest of 1/2 to him (a woman can bequeath upto 2/3 under these circumstances), he
again takes 1/6 of the remaining 1/3 to complete the one-half estate that is
bequeathed
to him. In the result the husband takes 1/3 as heir and 1/3 + 1/6, as a legatee,
Le, in all
he takes 5/6; the remaining 1/6 goes to the State by escheat.
(vii) An heirless Muslim can bequest his entire property. A Muslim who has only his
wife as an heir can bequest the entire property minus the share of the wife.
(viii) If a Muslim had married or got his marriage registered under the Special
Marriage Act, 1954, then Muslim law of succession does not apply to him. He is
governed by the Succession Act, 1925, and, therefore, he can bequeath his entire
property by a will.
According to Sunni Law, the consent by the heirs should be given only after the
death
of the testator. The consent given during the lifetime of the testator is of no
legal
effect. Under Shia Law, a consent given under undue influence, fraud, coercion or
misrepresentation is not valid and the person who has given such consent may claim
inheritance. The consent by the heirs can be given either expressly or impliedly.
If
the heirs attest the Will and agree for the legatee taking possession of the
property
bequeathed, then it amounts to consent.
Lapsing of Legacies:
Sunni Law: Under the Sunni Law, if the legatee does not survive the testator, the
legacy lapses and forms part of the estate of the testator.
Shia Law: Under the Shia law, however, if the legatee does not survive the
testator,
the legacy does not lapse, but passes to the heirs of the legatee. It is only when
the
legatee has no heirs that the legacy will lapse.
Abatement of legacies:
When a testator bequeaths in violation of one-third rule and the heirs refuse to
give
consent, the bequests, under the Hanafi law, abate rateably. Thus, if a Sunni
Muslim
bequeaths 1/2 of his estate to P and 1/4 to Q, since the total exceeds one-third,
the
legacies will be rateably reduced at the ratio of 1/2: 1/4. Or, suppose a dies
leaving
behind a will under which he directs Rs. 100 to be paid to his relatives, Rs. 100
to the
Fakirs, and Rs. 40 for expiration of prayers that he missed. He leaves behind an
estate
worth Rs. 216. The total amount of legacies comes of Rs. 240. While the
bequeathable
one-third is only Rs. 72. Hence, the legacies must abate in the proportion of 72 to
240,
Le; they will be reduced to 40, 30 and 12, respectively.
Under the Shia law, the rule is different. Bequest of prior date takes priority
over those
of later date unless the later bequest was intended to revoke the earlier. For
instance, a
Shia bequeaths 1/3 of his estate to A, 1/4 to В and 1/2 to C.
The heirs do not consent. The result will be that A will take 1/3, while В and С
will
not take anything. Or, suppose a gives 1/12 to P, 1/4 to Q and 1/6 to R. Then P
will
take 1/12 and Q will take 1/4. Since this completes the 1/3 estate, R will take
nothing
but if the same 1/3 successively bequeathed to A, В and C, then it means that the
last
bequest is in revocation of the former two. Then С will take 1/3, and A and В will
take
nothing.
Problem:
A bequeaths 1/6th of his property to C, 1/2 to F and the remaining to S, one of his
heirs. The other heirs do not give consent to these bequests. What would be the
result
on the rights of the legatees, if the testator is (i) a Sunni, (ii) a Shia?
Answer:
If the testator is a Sunni, the bequest to S, who is one of his heirs, will fail.
The
bequests to С and F will rateably abate, and they will take 1/12 and 1/4
respectively.
According to the Shia law, a bequest to an heir is valid so long as it does not
exceed
the bequeathable third. If the testator is a Shia, S will take 1/3.
Differences between Shia and Sunni Law:
Sunni Law
Shia Law
Does
not
distribution.
recognize
rateable
Will
It is an immediate transfer of right or
It is a transfer after death.
interest.
Delivery of possession is necessary.
Subject of gift must exist at the time of Subject of will must exist at the time of
death
making gift.
of the testator.
Right of donor is unrestricted.
Cannot be revoked.
A gift during death-illness is a pure Hiba in its formation but after the donor’s
death it operates like a will. Therefore, the essential conditions for a gift
during
death-illness are: (i) there is a valid and complete gift, and (ii) this gift is
made
during death-illness (Marz-ul-maut) of the donor.
(i) A valid and complete gift (Hiba):
The only difference between a simple gift and a death-bed gift is that if a gift is
made by a donor during his death-illness, the gift is testamentary; if it is made
normally, the gift is inter vivos i.e. pure Hiba. Thus, in a death-bed gift all the
essentials of a valid Hiba are necessary.
There must be declaration, acceptance and the actual or constructive delivery of
possession. In brief, the gift must be valid in all respects according to the
provisions of Muslim personal law.
(ii) Death-illness (Marz-ul-maut):