Can Sunni Muslims make a Will in favour of an heir?

Question: Can Sunni Muslims make a Will in favour of an heir? [RJS 1988]

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Answer

Mohammedan Law has not given unlimited testamentary powers to Muslims. The limitation as regards the testamentary powers of Muslims are follows -

(1) There is a restriction to the extent of the property

(2) There is a restriction as to the person to whom the bequest may be made.

Limits As Regards Property

A Muslim may not make a Will of more than 1/3 of the property that remains of his estate after payment of funeral expenses and debt, provided the heir's consent is not obtained after the death of the testator.

Therefore a Muslim can make a valid bequest in favour of a non-heir or stranger only to the extent of 1/3 of net assets remaining after payment of funeral expenses and debts. It is however important to point out:-

(a) A Muslim cannot create by Will an estate repugnant to the Law

(b) It is not necessary that the thing should be in existence at the time of the testator's death.

(c) A bequest may be made of anything which is capable of being transferred.

Limits as Regards Person 

(1) Bequest in favour of an heir - The general rule in this regard is that the bequest in favour of an heir is invalid unless the other heirs consent to it after the death of the testator. This general rule seems to be justifiable on the grounds that:

(a) It prevents a testator from interfering with or defeating the rule of inheritance.

(b) A bequest in favour of an heir to the exclusion of other heirs would be an injury to the latter and it would reduce their shares.

(c) It would consequently, induce a breach of the ties of kindred.

Such consent should be given after the death of the testator. Before the death of the ancestor, under Sunni Law, the person gets no interest in the property.

(2) Bequest in favour of an heir and stranger - When the bequest is made to an heir and also to a stranger, the bequest to the heirs is valid unless assented to by other heirs, a bequest to the stranger is valid to the extent of 1/3rd of the property.

Therefore, any bequest made in favour of any legal heir already entitled to a share is invalid under traditional Sunni Muslim law unless consent has been given by other legal heirs. In Sunni Law, the bequest to an heir is invalid even to the extent of one-third of the total property of a testator.

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