Muslim personal law levies limits on estate bequeathing
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I am a Sunni Muslim senior citizen, and was married according to Muslim personal law. My wife and I want to retain the assets with us during our lifetime. After the demise of either of us, we want all the assets to go to the surviving spouse, and after the demise of both, the assets should get divided equally between our two daughters, our only children. Please advise if there is any way we can ensure this.
While answering your query, we have presumed that your wife is also a Sunni Muslim. According to Muslim personal law as applicable to Sunni Muslims (unless married under the Special Marriage Act, 1954), except with the consent of all the heirs of the testator (being persons entitled to the estate of the deceased in the absence of a Will, as per the laws of succession applicable to such deceased) the testator cannot:
(i) dispose by Will more than one-third of his or her estate (after payment of funeral expenses and debts) and/or,
(ii) make a bequest of any of his or her assets to an heir.
The only scenario in which a testamentary disposition (i.e. a disposition by Will) is binding upon the heirs is where the bequest does not exceed the one- third of the estate of the testator and is made to a person who is not an heir. In order to overcome these restrictions, so that the testator can make a valid bequest in excess of one-third of his properties, or a bequest to an heir), such a bequest would need to be validated by the consent of all the heirs (namely the persons who would be entitled to the estate of the testator in the absence of a Will as per the applicable law) after the death of the testator. In the event that any of the heirs does not consent to such disposition, her share in the estate (as prescribed by Muslim personal law as applicable to Sunni Muslims) would devolve upon such heir.
I understand that you and your wife would like to bequeath your respective estates to your two daughters absolutely subject to a life interest in favour of either of you (being the survivor between the two of you).
While Muslim law does recognise the distinction between corpus of the property (ayn) and the usufruct (manafi), over the corpus of the property, the law permits only absolute dominion over the corpus of the property through gift (made during the life time or under a Will), but permits a life estate in the usufruct.
Subject to the rule for bequests by a Mohammedan being complied with (namely the consent of the heirs being obtained as applicable), you may make a bequest of the estate corpus to your daughters with a right to enjoy usufruct being bequeathed to your spouse till she lives.
Thus, it is possible to give your spouse a life interest in the usufruct of the property and bequeath the corpus to your two daughters. Your wife can follow the same procedure in respect of her Will and the devolution of her properties.
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