What is the limit of the testamentary power under Sunni and Shia law respectively?

Question: What is the limit of the testamentary power under Sunni and Shia law respectively? [BJS 1975]

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Answer

In Muslim law, the testamentary document is called Will, also referred to as Wasiyat. Will or Wasiyat is a document made by the legator in favour of the legatee which becomes effective after the death of the legator. Under Muslim law, no person is entitled to make a will of the whole property. Limitations are imposed in making a will. The reason is to pay respect to the word of the prophet in order to ensure the shares of the legal heirs.

While determining the rules guiding the interpretation of Wills, it is essential to remember the differences in the law of wills with regard to Sunni Law and Shia Law. Thus summarizing the differences:

a. In Sunni Law, the bequest to an heir is invalid even to the extent of one-third of the total property of a testator whereas, in Shia Law, the bequest to heirs is valid up to the extent of one-third of the property.

b. The Consent of the heirs must be given after the death of the testator in Sunni Law but in Shia Law, the consent of the heirs may be given before or after the death of the testator.

c. The bequest in favour of a child in the womb of his mother is valid provided he or she is born within six months of making a will in Sunni Law but it is up to ten months under Shia Law.

d. A will by the testator who later commits suicide is valid in Sunni Law. This is invalid in Shia Law unless the will is made before taking any step towards the commission of the act of suicide for the will to become valid.

e. The Legacy has to be accepted after the death of the testator in Sunni Law. Legacy under Shia Law can be accepted before or after the testator's death.

In Bayabai v. Bayahai and another, A.I.R. 1942 Bom. 328 (2), it has been held by His Lordship Chagla, J. as follows:

"Under Sunni Mohammedan Law, by which the parties are governed, there is a two-fold restriction on the testamentary capacity of a testator. He cannot dispose of more than one-third of his property, and even with regard to that one-third, he cannot bequeath it to his heirs. In this case, the deceased had purported to dispose of the whole of his estate, and all the affective bequests made by him are in favour of his heirs. These bequests could have been validated by the consent of the heirs after the death of the testator."

Under Shia Law, the bequest in favour of an heir is valid without the consent of other heirs provided it does not exceed the bequeathable one-third limit. If it is in excess of one-third, then the consent of those heirs is necessary whose share is likely to be affected by the bequest.

Under Shia Law, the consent of heirs whose shares are adversely affected can be given before or after the death of the testator and under Sunni Law, it must be given after the testator's death. But once the consent is given, it cannot be rescinded subsequently and the heirs are bound by it. Similarly, consent cannot be given after an heir has previously repudiated it.

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