Discuss briefly the limitations upon the testamentary powers of a Muslim.

Question: Discuss briefly the limitations upon the testamentary powers of a Muslim. [BJS 1980]

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Answer

A Will or Testament or Wasiyat has been defined as "an instrument by which a person makes disposition of his property to take effect after his death."

Tyabji defines Will as

"conferment of right of property in a specific thing or in a profit or advantage or in a gratuity to take effect on the death of the testator."

The distinguishing feature of a Will is that it becomes effective after the death of the testator and it is revocable. Unlike any other disposition (e.g. sale or gift), the testator exercises full control over the property bequeathed till he is alive: the legatee or beneficiary under the Will cannot interfere in any manner whatsoever in the legator's power of enjoyment of the property including its disposal or transfer (in that case the Will becomes revoked).

The object of Wills according to the tradition of the Prophet is to provide for the maintenance of members of the family and other relatives where they cannot be properly provided for by the law of inheritance.

At the same time, the prophet has declared that the power should not be exercised to the injury of the lawful heirs. A bequest in favour of an heir would be an injury to the other heirs as it would reduce their shares and would consequently induce a breach of the ties of kindred.

Thus the policy of the Muslim law is to permit a man to give away the whole of his property by gift inter vivos, but to prevent him, except for one-third of his estate, from interfering by Will with the course of the devolution of property according to the laws of inheritance.

Testamentary Power and its Limits (Bequeathable one-Third)

A Muslim does not possess unlimited power of making disposition by Will. There are two-fold restrictions on the power of a Muslim to dispose of his property by Will, which are in respect of the person in whose favour the bequest is made, and as to the extent to which he can dispose of his property.

This is obvious because the object behind this restriction is to protect the interests of the testator's heirs. No Muslim can make a bequest of more than one-third of his net assets after payment of funeral charges and debts. If the bequeathed property exceeds one-third, the consent of other heirs is essential (Sunni and Shia laws). So, a bequest of the entire property to one heir to the exclusion of other heirs is void.

Where the heirs refuse to give their consent, the bequest would be valid only to the extent of one-third of the property and the rest of the two-thirds would go by intestate succession. In respect of the bequest of one-third to an heir, the consent of other heirs is required in Sunni law, but not in Shia law. In the case of a non-heir (stranger) the consent of heirs is not required in both.

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