X makes a Wasiyat in favour of Y, and heir without the consent of other heirs. X dies and other heirs do not consent to the bequest after the death of X. Decide the validity of Wasiyat made by X in favour of Y.

There is no codified law regarding the execution of Wills by Muslims. It can be made as per their religious texts. The Muslim law of Wills is not uniform and there are differences between the Shias and the Sunnis relating to Will. Muslim testamentary succession is entirely governed by the Muslim Personal Law which covers the powers to make a Will, the nature of the Will, the execution procedure, conditions of validity etc.

The term Wasiyat means an endowment with the property of anyone after death. The making of a Wasiyat is not subject to any formalities. It can be made orally and no writing is required under the law. A Will must be made with free consent. A Will made under compulsion or mistake is invalid. Mohammedan law does not make any exception as to the competency to receive a bequest except in the case of an apostate (a former Muslim who has renounced Islam) and a murderer of the testator. Any person who is capable of holding property may be made a beneficiary. The estate of the Mohammedan testator vests in the executor from the time of the testator's death. The option of revocation or modification of the Will is available to the testator at any point during his lifetime.

The essential condition for a valid Will in Muslim law is that only property with absolute ownership of the testator can be bequeathed. A bequest which is contingent, conditional or in the future or alternative to another, pre-existing one, would be void. The whole estate of a deceased Mohammedan if he has died intestate or so much of it as has not been disposed of by Will if he has left a Will devolves on his heirs at the moment of his death. Under Muslim Law, every adult Muslim of sound mind can make a will. Wills may be made by both males and females.

As it was observed in the case of Rahisuddin v. Inheritance In Any Religion, (CS No. 76456/2015), a Muslim cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Mohammedan law does not allow him to show any undue preference towards any particular heir and a bequest to some of his heirs without the consent of the other heirs will be altogether invalid.

The court further noted that the policy of the law requiring the consent of other heirs, when a bequest to an heir is made, is to prevent the testator from interfering by Will with the course of devolution of property according to law among his heirs. The reason is that a bequest in favour of an heir would be an injury to the other heirs, as it would reduce their share, and would consequently induce a breach of the ties of kindred.

Thus, a bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. The bequest in excess of the legal third cannot take effect unless the heirs consent thereto after the death of the testator. Bequeaths in excess of the bequeathable one-third and/or in favour of any heir, are validated and will be given effect if after the death of the testator, the heirs whose rights are affected by such dispositions consent thereto expressly or impliedly. The consent of other heirs would validate a Will. The entire will would be binding on all heirs. A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator.

In the present case at hand, X makes a Wasiyat in favour of Y and his heir without the consent of other heirs. X dies and other heirs do not consent to the bequest after the death of X. In case the bequest is in excess of one-third limit in favour of Y, it is mandatory for the other heirs to consent to such bequeath. Because in this case, other heirs did not consent to the bequest after the death of X, such a bequest is invalid in eyes of Muslim Law.

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