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Q 15: When BEQUEST to Heir is Valid, Illustrate?
A: Bequest can be made for the following persons:
1. ANY PERSON: Any person who is capable fo holding property, whether male or female, Muslim or non-Muslim, may validly avail the benefit of a bequest.
2. UNBORN PERSON: Unborn person cannot be a legatee. However, if the lactate is in the womb and the birth takes place the will, he can be a lawful legatee. Shai Law recognizes a legatee born within 10 months from the date of will.
3. HEIRS: Heirs cannot be the legatees, that is, no bequest to heirs, who are entitled to inherit. This rule is relaxed only in cases, where other heirs give their consent (after testator’s death, in Hanafi Law; before or after testator’s death, in Shia Law). By giving consent, an heir can bind only his own share but not of others.
It is essential that the heir must be in existence at the time of testator’s death.
a. A Muslim dies leaving him surviving a son, a father, and a paternal grandfather. Here the grandfather is not an “heir”, and a bequest to him will be valid without the assent of the son and the father.
b. A Muslim dies leaving a son, a widow and a grandson by a predeceased son. The grandson is not an heir and a bequest to him is valid to the extent of one-third without the consent of other heirs, i.e, son and widow.
c. A, by his will, bequeaths certain property to his brother. The only relatives of the testator living at the time of the will are a daughter and the brother. After the date of the will, a son is born to A. the son, the daughter and the brother all survive the testator. The bequest to the brother is valid for through the brother was an expectant heir at the date of the will, he is not an “heir” at the death of the testator, for he is excluded from inheritance by the son.
a. A Muslim leaves him surviving a son and a daughter. To the son he bequeaths three-fourth of his property, and to the daughter one-fourth. If the daughter does not consent to the disposition, she is entitled to claim a third of the property as her share of the inheritance.
4. APOSTATES: Apostates cannot in any case be legatees. A bequest to non-Muslims, however, is valid according to all Schools except Shafei School.
5. MANSLAYER: Manslayer is one who kills another person, from whom he intends to take a legacy. Hanafi Law prohibits him to take any interest in the bequest. In Ithna Ashari (Shia) Law, however, the more logical view is taken and only intentional homicide leads to exclusion.
6. INSTITUTIOIN: Institutions, whether religious or charitable, can be valid legatees.