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WILL by a Muslim in India
By Raghavendra Rao of Poornaprajna Cyber Quest
Making a Will under Muslim Law requires finer points of the law being looked into carefully. In general, a Muslim can make a Will only in respect of one-third portion of his property and the other two thirds of the property goes in inheritance. Under Muslim Law, every adult Muslim of sound mind can make a Will in respect of the property owned by him in favour of any person capable of holding the property even to an unborn child provided the child takes its birth within six months from the date of the Will. However, Shia Law differs in respect of this period and says Will can be made in respect of an unborn child even if it takes birth in the longest period of gestation i.e. ten lunar months. Under Muslim law, it is not necessary to make a Will only in writing. It may be made either orally or in writing. No particular form is prescribed and a written Will need not be signed or attested. In the case of oral Will, the person who asserts it will have to establish and prove existence of oral Will with utmost precision beyond doubt.
The person making the Will may revoke it at any time either expressly or impliedly. The express revocation may be either oral or in writing. The Will can be revoked impliedly by testator transferring or destroying completely the subject matter of the will or by giving the same property to someone else by another Will. But if the marriage of a Muslim has been held under the Special Marriages Act, 1954, then such a Muslim cannot execute a Will under the Muslim law as the provisions of Indian Succession Act, 1925 shall be applicable in such cases. However, there are certain restrictions laid down in making the Will. A Muslim cannot bequeath his property in favour of own heir, unless the other heirs consent to the bequeath after the death of the testator. The person should be heir at the time of the death of the testator. But, under Shia Law, a testator may bequest in favour of his heir so long as it does not exceed one third of his estate and such bequest is valid even without the consent of the other heirs. The consent can be given before or after the death of the testator. But, if the entire estate is bequeathed to heir excluding other heirs entirely from inheritance, the bequest will be void in its entirety. According to Sunni Law, the consent by the heirs should be given only after the death of the testator. The consent given during the lifetime of the testator is of no legal effect. Under Shia Law, a consent given under undue influence, fraud, coercion or misrepresentation is not valid and the person who has given such consent may claim inheritance. The consent by the heirs can be given either expressly or impliedly. If the heirs attest the Will and agree for the legatee taking possession of the property bequeathed, then it amounts to consent. If the heirs do not question the Will for a very long time and the legatees take and enjoy the property, the conduct of such heirs will amount to consent. Once a heir gives his consent to the bequest, then he cannot rescind it later on.
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Contributor's Note
My blog titled Register your Will deals with Wills made by Hindus, Buddhists, Jains and Sikhs. This this blog pertains to Wills made by Muslims.
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PLEASE VISIT THE CONTRIBUTOR'S WEBSITE
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very informative and useful page. thks for the valuable info.
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