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Q 13: How much of his/her Estate of Muslim can dispose of by WILL? Does Quran Lays down this Limit of testamentary powers?
A: POWER TO DISPOSE OF BY WILL: The power of a Muslim to dispose of his property by will are limited in two ways:
1. The extent to which he can bequest his property
2. The persons in whose favour the bequest can be made.
1. The extent to which he can bequest his property: A Muslim cannot dispose of, by will, more than a third of the surplus of his estate after payment of funeral expenses and debts. This limit of one third is not laid down in Quran; it is the outcome of a tradition narrated by Abu Vekass. He says:
“In the year of the conquest of Mecca, being taken so extremely ill that my wife was despaired of the Prophet of God came to pay me a visit of consolation; I told him that, by the blessing of God, having a great estate but no heir except one daughter, I wished to know if might dispose of it at all by will”. He replied: ‘No’. And when I severally interrogated him, ‘if might leave two-third or one-half’ he also replied in the negative, but when I asked if I might leave a third, he answered, “Yes, you may leave a third, of your property, by will, but a third part to be disposed of by will is a great portion, and it is better you should leave your heirs rich than in a state of poverty which might oblige them to beg of others”.
Bequest in excess of the legal third cannot take effect unless the heirs consent thereto after the death of the testator. If the bequest exceeds the legal third and heirs refuse their consent, the bequest abates ratably.
Under the Shia Law such consent may be given either before or after the death of the testator. Further the Shia Law does not recognize the principles of rateable distribution.
1. The persons in whose favour the bequest can be made. Testamentary limits as to person fall under the following heads:
a. Bequest to an heir
b. Bequest to an heir and stranger
c. Bequest to unborn person
d. Bequest to a testator’s murder
a. BEQUEST TO A HEIR:
i. SUNNI LAW: Under the Sunni Law a
bequest in favour of an heir is not valid unless the other heirs consent to it after the death of the testator. The consent during the lifetime of the testator is of no effect because of the traditional saying of the Prophet: “God has allotted to every heir his particular right”, and also because a will in favour of some only of the heirs is an injury to the ties of the kindred. Further such favourtism would lead to unequal division of property by unreasonably reducing the shares of the neglected and unfortunate defeat the policy of the Quranic injunctions as to division of heritage according to the fixed principles.
If some of the heirs consent, the share of the consenting sharer shall be bound. In determining where a person is or is not an heir, regard is to be had, not to he time of the execution of the will, but to the time of death of the testator. The consent need not be express, it may be signified by conduct showing a fixed and unequivocal intention.
ii. SHIA LAW: According to Shia Law a testator may leave a legacy to an heir so long as it does not exceed one-third of his estate. Such a legacy is valid without the consent of other heirs. But if the legacy exceeds one-third, it is not valid unless the other heirs, consent thereto. Such consent may be given either before or after the death of the testator.
2. BEQUEST TO A HEIR AND STRANDER:
i. SUNNI LAW: Where under a will a legacy is given to an heir as will as a legacy to a non-heir, the legacy to the heir is invalid unless assented to by the other heirs, but the legacy to the non-heir is valid to the extent of one-third of the property.
ii. SHIA LAW: According to the Shia Law bequests to any of the heirs, payable out of one-third of the estate are valid even without the consent of the other heirs. But a legacy in excess of one-third is not valid without the consent of the heirs. According to the Sharaya-ul-Islam, “a bequest in favour of one’s kindred is highly proper they be his heirs or not”.
3. BEQUEST TO UNBORN PERSON:
i. SUNNI LAW: Bequest to an unborn person is void. But a bequest to a child in the womb is valid provided it is born within six months from the date of the will. Fatwa-I-Alamgiri and Hedaya have laid down that the legatee must be in existence on the date the will is executed.
ii. SHIA LAW: According to the Shia Law a bequest to a child in the womb is valid if it is born in the longest period in gestation, i.e, ten is necessary that the child must be born within six months from the date of the will. A bequest, therefore, to a person not in existence at the time of the testator’s death is invalid.
4. BEQUEST TO A TESTATOR’S MURDERER:
i. SUNNI LAW: Bequest to a person who causes the death of the testator whether intentionally or accidentally is void. The Prophet was also of the opinion that there was no legacy for the slayer, he had hastened an event which God might have delayed. The bequest to the murdered is unlawful whether it is made wound was inflicted or subsequently. If the heirs assent to the bequest, it is valid according to Abu Hanifa and Mohammad, though not according to the Abu Yusuf.
ii. SHIA LAW: A legatee who causes the death of the testator is disentitled to take the legacy only if the death is caused intentionally and not by accident. Such a disqualification is only personal; a bequest in favour of such a legatee’s parents, children or any other descendant or ascendant would be lawful.