A Muslim made a will of his properties in favour of his two friends ‘Y’ and ‘Z’... His heirs did not approve of the will. Determine the respective shares.... under Sunni Law and Shia Law.

Question: A Muslim made a will of his properties in favour of his two friends ‘Y’ and ‘Z’, by stipulating that the former would get ½ and the latter ¼ of his property. His heirs did not approve of the will. Determine the respective shares to which each would be entitled under Sunni Law and Shia Law. 

Find the question and answer of Muslim Law only on Legal Bites. [A Muslim made a will of his properties in favour of his two friends ‘Y’ and ‘Z’, by stipulating that the former would get ½ and the latter ¼ of his property. His heirs did not approve of the will. Determine the respective shares to which each would be entitled under Sunni Law and Shia Law.]

Answer

The testimentary capacity of sewerm ins Immeted. The general rule regarding the extent of property that may be deposed of by will is that no Muslim can make a bequest of more than 1/3 of his net assets after payment of funeral expenses. 

The authority of the above general rule is found in Hadis.

Saad Ibn Abi Waqqas discovered that once he paid a visit to the Prophet of God. He asked Prophet that by the blessing of God having a great estate

'I wish to know if I can dispose of all by will. Prophet replied no. I asked again if he might leave 2/3 or 1/2 but Prophet replied negatively. Then I asked third. Prophet answered Yes.'

However, above rule is subject to exceptions

a) Under Hanafi low, a bequest of more then 2/3 way is valid if the heirs give their consent after the death of the testator. However, in Shia Law such must be given before or after the testator's death.

b) If the testator has no heir, he can bequeath the whole of his estate.

In present case. A Muslim made a will of his property in the following order

1st: In favour of Y - 1/2 of property.

2nd: In favour of Z- 1/4 of property 

According to rule if heir didn't consent more than 1/3 cannot be bequested. So, in present case only upto 1/3 of estate can be requested in Sunni law.

Where property is bequested of more than 1/3 of property to two or more person and heirs do not consent, the shares are reduced proportionately to bring it down to 1/3 of property.

In this case, testator intended to dispose of 3/4 of his property by will. According to application of Sunni Law, the shares to which Y and Z are entitled 2/9 and 1/9. Hence Y would get 2/9 and Z would get 1/9 of property.

The Shia Law does not accept the principle of rateable distribution The rule of Shia law is that first in time prevails until bequeathable tried is exhausted. The bequest in favour of Y is 1/2 and in favour of Z is 1/4. So, the first in order is Y. However, the share of Y exceeded their bequeathable property and the heirs did not assert this. In the absence of consent, the will has to be void to extend of share.

Hence under Shia Law, only Y is entitled to be share under a will and there will be 1/3 of bequeathable property and the rest part bequest is invalid due to lack of consent.