P, a Muslim has a son S, a wife W and a grandson G from a predeceased son D. P makes a will of his whole property in favour of G. Decide the validity of this bequest.
Find the question and answer of Muslim Law only on Legal Bites.
Question: P, a Muslim has a son S, a wife W and a grandson G from a predeceased son D. P makes a will of his whole property in favour of G. Decide the validity of this bequest. [HJS 1988]Find the question and answer of Muslim Law only on Legal Bites. [P, a Muslim has a son S, a wife W and a grandson G from a predeceased son D. P makes a will of his whole property in favour of G. Decide the validity of this bequest.]AnswerThe testamentary capacity of a Muslim is limited in two ways. He does...
Question: P, a Muslim has a son S, a wife W and a grandson G from a predeceased son D. P makes a will of his whole property in favour of G. Decide the validity of this bequest. [HJS 1988]
Find the question and answer of Muslim Law only on Legal Bites. [P, a Muslim has a son S, a wife W and a grandson G from a predeceased son D. P makes a will of his whole property in favour of G. Decide the validity of this bequest.]
Answer
The testamentary capacity of a Muslim is limited in two ways. He does not possess unlimited power of making disposition of property by Will. There are two-fold power restrictions on the power of a Muslim to dispose of his property by Will. The first restriction is in respect of a person in whose favour the bequest is made and the second restriction is as to the extent to which he can dispose of his property.
(i) Limitation as regards the Person: General Rule is that bequest in favour of an heir even to the extent of one-third was not valid under Sunni law unless the other heirs consented to it, expressly or impliedly after the death of the testator.
Under Shia Law, the testator may without the consent of another heir give a legacy to an heir so long as it does not exceed 1/3rd of his estate. The only case in which testamentary disposition is binding upon the heirs is where the bequest does not exceed the legal third and it is made to a person who is not an heir but a bequest in excess of the legal third may be validated by the consent of the heirs.
(ii) Limitation as regards the Property: General rule with regard to the extent of property that may be disposed of by Will is that no Muslim can make a bequest of more than 1/3rd of his net assets after payment of funeral charges and debt.
In the case in hand, the grandson is not an heir. Therefore, the bequest to him is valid to the extent of 1/3rd without the consent of the son and the wife.
Mayank Shekhar
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