Muslims may bequeath a third of the property by Will
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I am a Muslim and I understand that after my demise, my assets will be inherited according to Muslim Law (Shariah), should an immovable asset like a house property be bequeathed through a Will.
If I do so, would the Will be considered invalid as the beneficiary of my Will may not exactly match the norms prescribed in Shariah law?
I need help to decide if I should draft a Will or not. Apart from my house, the other assets have a second holder in place so I am not much worried about those.
Please advise me on this issue.
In India, matters relating to succession and inheritance of a Muslim are governed by Muslim personal laws.
According to Mohammedan law, a Muslim cannot dispose of by Will more than one-third of what remains of his property after his funeral expenses and debts are paid.
Therefore, the remaining two-thirds of the property must go to the heirs of the deceased as in intestacy (i.e. the persons entitled to the estate of the deceased as per Mohammedan laws of succession applicable to such deceased), unless his heirs consent to the bequest in excess of the third in favour of another.
It is pertinent to note that in the case of Sunni Muslims, while a bequest to a stranger (i.e., a person who is not an heir) to the extent of one- third is permissible, any bequest to an heir is not valid unless the other heirs of the testator consent to such a bequest, even if it is within this permissible limit of one-third.
The consent of the other heirs to such a bequest must be given after the death of the testator and such consent would bind the share of the respective heir.
In the case of Shia Muslims, however, a bequest may be made to a stranger and/or to an heir (even without the consent of the other heirs) so long as it does not exceed one-third of the estate of the testator.
However, if it exceeds one-third, it is not valid unless the other heirs consent.
In the case of Shia Muslims, the consent of the heirs may be given either before or after the death of the testator.
The above rule under Mohammedan law, which restricts a Muslim from bequeathing more than one-third of his or her estate by Will, may not strictly apply to certain sects of Muslims, such as Khoja Muslims, Cutchi Memons or Muslims who have solemnised their marriage under the Special Marriage Act.
Accordingly, assuming you do not fall under an exempted category or sect as mentioned above, and the one-third rule applies to you, then you may make a Will bequeathing one-third of your estate (including immovable property) to a stranger (or even to an heir in the case of Shia Muslims).
In respect of the remaining two-thirds of a property, if the beneficiaries under your Will are not the same as your heirs under Mohammedan law, then such bequest would not be valid unless your heirs consent to such bequest, as mentioned above.
As regards your other assets, it would be important to determine the manner in which the assets are held by you and the second holder.
If your assets are held as tenants- in-common with the second holder, it would be open to your heirs to claim a share in those assets (to the extent of your share), since, unlike joint tenants where on the death of one of the persons, his or her interest in the property automatically passes to the surviving joint owner, in the case of tenants in common, the interest of the deceased owner passes to heirs in accordance with the rules relating to intestate succession under the personal law applicable to him or as per the Will and not upon the surviving owner.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries.
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