Should Shia Muslim parents write a Will to ensure their five children (three daughters and two sons) can acquire assets, including properties and bank accounts, equally and smoothly post their demise? Or is their a better way for succession planning for them? Will forced heirship Sharia law prevail over a valid Will? Can Sunni Muslims or Kutchi Memons also write a Will? What are the dos and don’ts for ensuring smooth succession planning for Muslims in India?
—Name withheld on request
In India, matters relating to succession and inheritance of a Muslim are governed by Muslim personal laws. According to Muslim personal law as applicable to Shia Muslims, a Mohammedan cannot dispose of by Will more than one-third of what remains of his property after his funeral expenses and debts are paid, unless his heirs consent to the bequest The bequest may be made to a stranger and/or to an heir (even without the consent of other heirs). However, if it exceeds one-third of the testator’s property, it is not valid unless the other heirs consent to this (which consent may be given either before or after the death of the testator).
In case of the intestate succession of the remaining estate (that is; succession of that part of the estate which is not disposed of by Will) of a Shia Muslim, it is divided among legal heirs as per Mohammedan law as applicable to Shias. If your father predeceases your mother, the estate of your father would devolve in the following manner as per Mohammedan law applicable to Shias: your mother will be entitled to get a 12.5% share in her husband’s property, the brothers (as sons) would each get a 25% share and the sisters (as daughters) will each get a share of 12.5% in the father’s property.
If your mother predeceases your father, the estate of your mother will devolve in the following manner; your father will be entitled to 25.1% share in your mother’s property, the brothers (as sons) would each get a share of 21.4% in your mother’s property and the sisters (as daughters) would each get a shares of 10.7% in your mother’s property.
However, if all the heirs provide their consent, then your father or mother, as the case may be, can bequeath their estate to their children equally, which consent may be given either before or after the death of the testator.
A Sunni Muslim cannot dispose of by Will more than one-third of what remains of his/her property after payments of funeral expenses and debts. Further, any bequest to an heir (including within the permissible one-third limit) is not valid, unless the other heirs consent to such bequest. Also, the consent of the heirs to such bequest must be given after the death of the testator.
Similar is the case with Cutchi Memons. The Cutchi Memon Act 1938 clearly laid down that all Cutchi Memons shall, in matters of succession and inheritance, be governed by Mohammedan law.
Every Mohammedan who is of sound mind and not a minor may make a Will. In the case of Mohammedan, no writing is required to make a valid Will and no particular form is necessary. A Will may also be made through an oral declaration. However, the intention of the testator to make a Will must be clear and explicit and this would, therefore, need to be proved, if challenged. In order to avoid any sort of conflict in future, it may be more prudent that the Will is reduced to writing and executed by the testator. The Will could be executed in accordance with the provisions of the Indian Succession Act, 1925. The Will should be attested by two or more witnesses, each of whom has seen the testator sign or affix his/her mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his/her signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator. Beneficiaries under the Will should not be attesting witnesses of the Will.
The testator may register the Will under the provisions of the Indian Registration Act, 1908, though registration is not mandatory.
Marylou Bilawala is partner, Wadia Ghandy & Co. Advocates, Solicitors and Notaries. Queries and views at firstname.lastname@example.org