Muslim Testamentary Laws: Bequest and Inheritance

Muslim Testamentary Laws: Bequest and Inheritance

Muslim inheritance and testamentary laws are deeply rooted in religious texts and principles. These laws, known as "Faraid," are derived from the Quran, Hadith (sayings and actions of Prophet Muhammad), and the consensus of Islamic scholars (ijma). Here’s a detailed overview of these laws, particularly focusing on the types of succession, the rules regarding wills (Wasiyyah), and the specific shares and rights of heirs under the Muslim Personal Law (Shariat) Application Act, 1937 (“Shariat law”).

Under the Hanafi law, the heirs of the deceased are either sharers or residuaries, and in the absence of both of these classes of heirs, the estate is passed down to other relatives of the deceased, who fall under the category of “distant kindred”. In case of absence or some inability that restricts the distant kindred from inheriting, the estate is passed on to the state by escheat, meaning that if a Muslim dies heirless, then the property is devolved on to the state.

Key Principles of Shariat Law

1. Joint Tenancy and Survivorship: These concepts are not recognized. Heirs are considered tenants-in-common, meaning each heir has a distinct, proportional share of the property. The share of the deceased does not automatically transfer to the surviving co-owners but is distributed according to the prescribed shares.

2. Inheritance Distribution: The estate is distributed according to the specific shares defined in Islamic inheritance laws.

To create a valid Will executed by a Muslim (Mahomedan), the following conditions must be fulfilled:

1. Capacity: The testator must be of sound mind, not a minor, and not under duress.

2. Form of Will: A Will can be verbal or written.

3. Subject of the Bequest: The assets or property to be bequeathed must be clearly specified.

4. Formalities: The Will must be in writing and signed by the testator. It may require the signatures of two witnesses who are adults.

 5. Limitations on Bequests: A Muslim can only bequeath up to one-third of the estate to strangers. The remaining two-thirds must be distributed according to the Shariat law. Bequests to heirs are only valid if all heirs consent after the death of the testator. Consent cannot be given during the testator’s lifetime.

 6. No Conditional or Contingent Bequests: Bequests must be immediate and unconditional. Conditional or contingent bequests are generally void. However, under Sunni Law, a bequest to an unborn child is valid if born within six months (or ten months under Shia Law).

 Fixed heirs, residuaries and the kindered

This table illustrates the principles of Hanafi inheritance law, showing how shares are allocated among various heirs.

Heir Category	Heir	Fixed Share inherited	Conditions
Fixed Heirs	Husband	1/2 (no children), 1/4 (with children)
Wife	1/4 (no children), 1/8 (with children)
Mother	1/3 (no children/siblings), 1/6 (children/siblings)	If mother is not alive, Paternal grandmother will take this share.
Father	1/6 (with children) 1/3 (no children/siblings),	If father is not alive, Paternal grandfather will take this share.
Residuaries	Daughter(s)	1/2 (one daughter), 2/3 (two or more)	Receives residue if no sons, otherwise, her share is half of a son's share.
Son(s)	Sons share the residue after fixed shares are distributed.	Inherits the residue after fixed shares are
Example: Number of children / remaining estate amount For eg: There are three daughters and two sons 5/500000 = 100000/- Son will get twice the share of daughter Son 1- 2 Lakhs Son 2- 2 Lakhs Daughter 1-33000/- Daughter 2- 33000/- Daughter 3- 33000/- If no children, then siblings will take share.
Full Sister(s)	1/2 (one sister), 2/3 (two or more)
Uterine Brother/Sister	1/6 (one), 1/3 (two or more)
Full Brother	Inherits residue if no children, parents, or grandchildren.
Full Sister	Inherits residue with full brother or alone if no sons, daughters, or full brothers.
Paternal Uncle	Inherits residue if no closer male relatives
Paternal Aunt	Inherits residue if no closer female relatives and no brothers or sisters.
Kindred	Nephews/Nieces	Inherit if no closer residuaries exist.
	Cousins	Inherit if no closer relatives exist.

Conclusion: 

A bequest in favour of an heir is invalid unless the other heirs consent to it after the testator's death. For the purpose of giving effect to a will whereby a testator has bequeathed more than 1/3rd interest either to a testator or to a heir, consent is required in relation thereto of the heirs only after the death of the testator. Thus even a consent by the heirs of the testator during his lifetime in such a case does not sub-serve the requirement of law. For these reasons only, a provision has been made to obtain consent of the heirs after the death of the testator; if by reason of a will more than 1/3rd of the properties is sought to be bequeathed to an outsider, and to any extent to a heir.

Consent of the heirs could not be implied from mere silence on their part at the mutation proceedings. Unless strong circumstances exist and conclusion becomes inevitable consent cannot be implied.