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Parvina Seth Salim

posted 1 year ago

A Married Childless Muslim person had a family of one wife and seven sisters. He was thus the only male member in the family.
Six out of seven sisters died before the above said Muslim person the Testator, who too expired some time ago.
In his Will, the Testator bequeathed his whole property and assets, in the shares of 1/8th each, to his living wife, living sister and survivors of the six deceased sisters.
Is the above Will valid and if not then what should be the actual distribution of the estate according to Muslim Sharia Law.
Are the survivors of deceased sisters eligible to the share in estate? If not then what should happen to their 6/8 part of the share.

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Shanti Ranjan Behera

Experience: 23 Year(s)

Responded 1 year ago

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A. ) Dear Client,
The laws on Muslim Wills are not the same as those made under the Indian Succession Act, 1925. Muslim Will are governed by the rules laid by the the Koran. As a general rule in the Muslim law in India (Shariat), any person, who is a major (above 15 years) and is of sound mind, can make a Will but can't dispose of more than one-third of his property without the consent of his heirs. This includes the assets left after payment of funeral expenses and debts.

The remaining two-third property is the legal right of his heirs at the time of his death.

With respect to Shia Muslims, bequeathing one-third estate to an heir or to a non-heir is permissible. However, under the Sunni Muslim personal law, the one-third inheritance may be made in favour of a non-heir without seeking the consent of legal heirs. If it is made to an heir, it is invalid unless the consent of other heirs is obtained after the death of the testator.

However, the such a restriction does not apply to a Muslim whose marriage has been solemnised under the provisions of the Special Marriage Act, 1954 (instead of Muslim personal laws). If the marriage is solemnised under this Act, the rules of Hindu or Muslim personal law cease to apply to him with respect to the matters of succession of his property. In such a scenario, a Muslim may, by his will, dispose of his entire property at his free will.

No restriction to gift a property

But a Muslim is at his liberty to transfer his entire property in his lifetime through a gift to any person, unless it is a marz ul maut (death bed) gift. Under the Muslim law, marz ul maut is regarded a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death. In such a scenario, the person can't bequeath more than one-third of his estate without the consent of the heirs.

Property to an unborn child

Bequeathing property to an unborn child is not allowed. However, if a mother is pregnant, and a child is born within six months of the death of the person making the Will, the child has all the rights to inherit the property.

Form of Will

The Muslim law does not mandate a written form of Will. It may be made orally as well as in writing. There is no particular manner in which the Will has to be written. At the same time, unlike a Will made by a Hindu, it's registration and attestation is not mandatory. In case the Will has been made orally, it is the duty of the person to establish and prove the existence of oral Will with utmost precision beyond doubt.
If the person making the Will wants to revoke it, it may be done either verbally or in writing.
Shanti Ranjan Behera

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Kishan Dutt Kalaskar Retired Judge

Experience: 34 Year(s)

Responded 1 year ago

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A. ) It is called Hiba and valid.

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