'K' a Muslim dies leaving a son 'B', widow 'X' and a grandson 'Y' by a pre-deceased son. 'K' by his "Will" bequeathed 1/3 of the estate to 'B' and 'Y'. 'X' does not consent to the bequest in favour of 'Y'. Is this bequest in favour of 'Y'? Is this bequest valid?

Question: 'K' a Muslim dies leaving a son 'B', widow 'X' and a grandson 'Y' by a pre-deceased son. 'K' by his "Will" bequeathed 1/3 of the estate to 'B' and 'Y'. 'X' does not consent to the bequest in favour of 'Y'. Is this bequest in favour of 'Y'? Is this bequest valid? [UPJS 2006]

Find the question and answer of Muslim Law only on Legal Bites. ['K' a Muslim dies leaving a son 'B', widow 'X' and a grandson 'Y' by a pre-deceased son. 'K' by his "Will" bequeathed 1/3 of the estate to 'B' and 'Y'. 'X' does not consent to the bequest in favour of 'Y'. Is this bequest in favour of 'Y'? Is this bequest valid?]

Answer

A bequest (Wasiyya) or Will is defined as a transfer to come into operation after the testator's death. The testator is called Musi, and the legatee or devisee is called Musa lahu, and the executor is called Wasi. It is a spiritual testament of a man enabling him to make up for his shortcomings in the worldly life and secure rewards in the Hereafter.

According to Shar'iah, one is entitled to make a will for one-third of one's property and not beyond that so that the rights of the legal heirs are not adversely affected.

Abdur Rahim in his book 'The Principles of Muhammadan jurisprudence' explains the further reason why a bequest in favour of an heir is not allowed is that

"it would amount to giving preference to some heirs over others, thus defeating the spirit of the law which has fixed the portion of each in the inheritance and causing disputes among persons related to one another. If the other heirs consent to a bequest to one of them or to a bequest of more than one-third of the estate, the above reasons no longer hold good and the bequest as made will be valid".

According to this exposition of the law, a Muslim cannot bequeath more than one-third of his property whether in favour of a stranger or his heir when there are heirs or other heirs left by him as the case may be. If the property bequeathed is in excess of one-third of the estate, the excessive bequest is not valid unless the heirs, or other heirs (if the bequest is in favour of one or some of the heirs) give their consent. Under the Hanafi law, consent has to be given after the death of the testator, whereas under the other schools of law it can be given either before or after the death of the testator.

The estate bequeathed in excess of the bequeathable third will be valid to the extent of the share of the heir or heirs consenting to such excess whether the bequest is in favour of the stranger or the heir or heirs.

Where, however, there are more bequests than one which together exceeds one-third of the estate, the bequests get reduced rateably. The bequests in favour of heirs are discouraged under Mohammedan Law because the share of the heirs is fixed and no bequest can be made to deprive the heirs of their rightful share.

The object is also to avoid internecine disputes between the heirs. While a bequest in favour of an heir according to one Mohammedan School of law is entirely invalid even if it is confined to the bequeathable third, according to another school, it is valid only to the extent of one-third. It also, however, appears that where other heirs consent to the bequest according to both schools the bequest is valid whether it is of one-third or of more of the estate. Where only some of the heirs' consent, it is valid to the extent of the share of the consenting heir or heirs.

In the given case at hand, 'k' a Muslim dies leaving a son 'B', widow 'X' and a grandson 'Y' by a pre-deceased son. 'K' by his "Will" bequeath 1/3 of the estate to 'B' and 'Y'. 'X' does not consent to the bequest in favour of 'Y'. The bequest in favour of 'Y' is bequest valid as the collective bequest to 'B' and 'Y' does not exceed one-third.

• Muslim Law – Notes, Case Laws, And Study Material
• Test Series for Competitions