For example, if a bequest makes a will under which the property is to be given to a mosque and to the poor of the testator`s place, half of the hereditary property is given to the mosque and the other half is divided equally among the poor of the place. In the execution of a will, the free consent of the testator is mandatory. A will, if it is found to have been executed by a bequest under duress, undue influence or fraud, is considered null and void, and the legatee is not entitled to receive property under the will. If the share of all legatees is expressly determined by the legatee himself in the will, there is no confusion as to the share. The property is distributed according to the ratio specified by the legatee in the will, and each legatee receives the respective share allocated to it. For example, “A” executes a will that remits all of his property to “B.” Suppose “A” owns a house at the time of Will`s execution, but also owns a car at the time of his death. Thus, “B” has the right to have both the house and the car in his will. If the will is made, the testator must be in good mental health. According to Muslim law, it has been cited that a probate must possess a perfect “spirit of disposition” at the time of execution of the will.
In other words, a testator must be competent to understand his actions and the legal consequences of what he does, not only for the precise period during which the will is made, but also until his death. Will power and its limits (hereditary from a third party) A Muslim does not have unlimited power to make arrangements by will. There are two restrictions on a Muslim`s power to dispose of his property by will, namely with regard to the person to whom the bequest is made, and with regard to the extent to which he can dispose of his property. This is obvious, since behind this restriction lies the protection of the interests of the heirs of the deceased. # No Muslim can inherit more than a third of his net worth after paying funeral expenses and debts. If the inherited wealth exceeds one third, the consent of the other heirs is essential (Sunni and Shiite law). A bequest of all property to an heir to the exclusion of other heirs is null and void -Husaini Begum V. Mohd. Mehdi If the heirs refuse their consent, the inheritance would only be valid for one third of the property, and the rest of the two thirds would pass through legal succession.
# With regard to one-third of the inheritance to one heir, the consent of the other heirs is required under Sunni law, but not under Shia law. In the case of a (foreign) non-heir, the consent of the heirs is not required in both cases. # The above third-party inheritance rule does not apply in case the testator has no heir. The government`s right to take over the estate of an heir in no way restricts a person`s right to dispose of his or her property at will. The government is therefore not the heir of a person without an heir. # A bequest for pious purposes is equal to or equal to one-third of the property, under Sunni and Shia law. # The “1/3 limit” rule does not apply when a Muslim marries under the Special Marriage Act, 1954, as he then has all the powers of a testator under India`s Succession Act, 1925. Consent of heirs Consent must be given by the heirs and not by the presumed heirs. The status of heir or not is determined at the time of the testator`s death, since a person who is heir at the time of writing the will does not remain heir at the time of the testator`s death, and vice versa. The consent of heirs under Sunni law can only be given after the death of the testator, while in Shia cases it can be given before or after the death of the testator.
Consent must be final, whether explicit or implied by positive behaviour, and the mere silence of an heir does not constitute implied consent. Certification of the will by the heirs and acquiescence of possession of the property by the legatee were considered sufficient consent. In cases where only some of the heirs give their consent, the shares of the consenting parties are bound and the excess of the legacy must be paid from the share of the consenting heir. The consent of insolvent heirs has been found to be effective in validating a bequest. Once given, consent cannot be revoked later. Similarly, consent may not be given after an heir has previously revoked it. Bequests to heirs and non-heirs If the testator makes a legacy to both heirs and non-heirs of the same legacy without the consent of the heirs, the succession is not invalid in its entirety, but becomes effective with regard to non-heirs. The rule is that, as far as possible, the will is given the maximum effect of which it is capable. For example, if the testator bequeaths all his property to an heir and a non-heir without the consent of the heirs, the non-heir takes one-third of the property and the rest of two-thirds goes to the heirs of the testator by inheritance – Muhammad V. Aulia Bibi. For example, “T” is a Shia Muslim who has drawn up a will, under which A`s share is 2,000 rupees, B`s share is 1,000 rupees, and C`s share is also 1,000 rupees.
The total ownership is Rs 9,000, which is more than one-third of the hereditary property. Thus, one-third of 9,000 rupees / – 3,000 rupees, which is the required hereditary amount. Now, according to the preferential rule, A gets its full share, i.e. 2,000 rupees, B gets the remaining rupees. 1,000/-, which represent its full share, and C will not receive a share because the heritable property is exhausted after B`s share. The preference is determined by the order in which the names of the legatees are mentioned in the will. The legatee whose name is mentioned first receives his full share as specified in the will, and the rest is passed to the second legatee, and so on. As soon as a third of the property is completed, the distribution ends. It can be concluded that either a legatee receives his full share or he gets nothing. In cases where a Muslim has married under the Special Marriage Act, 1954, the will made by that Muslim is governed by the provisions of the Indian Succession Act, 1925 and not by Muslim personal law.
A child in the womb is treated as a living person and is therefore a competent universal legatee under Islamic law under two conditions. First, it must exist in the womb at the time of the declaration of will.
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