Explain the distinction between the Sunni and Shia Law of Wills. Discuss the limitations, if any, upon the testamentary powers of a Muslim.

Question: Explain the distinction between the Sunni and Shia Law of Wills. Discuss the limitations, if any, upon the testamentary powers of a Muslim. [BJS 1984]

Find the question and answer of Muslim Law only on Legal Bites. [Explain the distinction between the Sunni and Shia Law of Wills. Discuss the limitations, if any, upon the testamentary powers of a Muslim.]

Answer

Below are the comparative differences between Shia and Sunni laws of Will:

1. Shia Law: Bequest to an heir is valid only if it is one-third.

Sunni Law: Bequest to an heir is invalid even if it is one-third.

2. Shia Law: Consent of the heirs must be given before or after the death of the testator.

Sunni Law: To pass property more than 1/3 to any other person through the testator, consent of the heirs is necessary to be taken after the death of the testator.

3. Shia Law: Bequest in favour of the child in the womb of her mother is a valid subject that the child is born within 10 months of the date of declaration of will.

Sunni Law: Bequest in favour of the child in the womb of her mother is valid subjected that the child is born within 6 months of the date of declaration of will.

4. Shia Law: A will by the testator who later commits suicide is invalid.

Sunni Law: A will by the testator, when written or declared in his all senses, who later commits suicide is valid.

5. Shia Law: Legacy must be accepted before or after the death of the testator.

Sunni Law: Legacy must be accepted after the death of the testator.

6. Shia Law: A Legatee committing murder or causing the death of the testator intentionally cannot claim the property of the testator, but if accidentally or negligently then he can claim the legacy.

Sunni Law: A Legatee committing murder or causing the death of the testator cannot claim the property of the testator later.

7. Shia Law: If the legatee dies before the testator the legacy lapses if he dies without any heir or the testator himself revokes the Will.

Sunni Law: If the party in whose favour the Will is transferred dies before the testator, the legacy is lapsed.

Testamentary Capacity of Legator in Shia and Sunni Law

A Muslim cannot dispose of by will more than one-third of the net assets after allowing for the debts and funeral expenses of the testator (under both Hanafi Law and Shia Law).

Under Sunni Islamic law the power of the testator is limited in two ways: firstly, he or she cannot bequest more than 1/3 of the total property unless the other heirs consent to the bequest or there are no legal heirs at all or only legal heir is the spouse who gets his/her legal share and the residue can be bequeathed and secondly, the testator cannot make a bequest in favour of a legal heir under traditional Sunni Muslim law. Here consent must be given at the time of the operation of the Will, that is, after the death of the testator.

Under Shia Law, the bequest in favour of an heir is valid without the consent of other heirs provided it does not exceed the bequeathable one-third limit. If it is more than one-third, then the consent of those heirs is necessary whose share is likely to be affected by the bequest.

As summarized by the Hon’ble Bombay High Court in Damodar Kashinath Rasane v. Shahajsdibi And Ors, AIR 1989 Bom 1, the Sunni Schools agree in holding that a bequest in favour of an heir is invalid but, according to the Shia law, it would seem that a testator can leave a legacy to one of his heirs so long as that legacy does not exceed one-third of his estate and that such a legacy would be valid without the consent of the other heirs. However, where the legacy exceeds one-third of the estate, it will not be valid to any extent unless the consent of all the heirs, given after and not before the death of the testators, has been obtained.