mahak (student) 02 May 2012

Will

Sir,

I am a doctor by profession mother of 6 children by the grace of allah all are continuing their studies well actually my husband left us and married other women and did'nt divorce me but whoever ask put our matter infront of him about me and children he says that he divorced me and left children on me and he is enjoying his life and money alone not helping us with a single paisa my childrens are working parttime by giving tuitions and all earning money but now i want to make a will of my property can i make a will when my husband is still alife i have one property of my own earned money i am a doctor by profession but presently not working because of my ill health problem and other family problems please advice me because i don't have enough money to spend on advocates about this query actually i don't want to disclose this matter(will) infront of others .

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3 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 02 May 2012

Assalawalekuum,

A Sunni Muslim is competent to dispose only 1/3rd of his total property by way of a will(wasiyat). IF will does provide for more than 1/3rd it does not take effect unless the legal heirs consent to the excess.

Your legal heirs would be your husband/children and would inherit your property on your demise.

The second option to be explored is a gift/Hiba to your children, however for that also Delivery of Possession is an essential condition and in cases of minors the Possession has to be delivered to Natural/Legal Guardian of minors, which alas is still their father. Under Muslim Law Mother is not the natural/legal guardian but only entitled to custody i.e Hizanat hence cannot recieve the properties on behalf of children.

You'll be much better off obtaining a faskh (talaq) from your husband on account of mental cruelty (due to 2nd marriage) and then oust him from staking a claim from your property.

Khaleel Ahmed Mohammed (Advocate ) 02 May 2012

Dear Mahak,

It is sad to inform you as per your above statement , that, whoever ask to your husband about you, he stated or informed them he had divorced you. It is enough for a muslim tot pronounce talaq. Please note that,you are no more his wife.You can present petition before your local Qazi to issue divorce certificate. Further he can not inherit your properties as the above expert advised you as per shariath law.

About will , you can make it for the extent of one third of your total property. As a ,atter of fact , Islam does;nt advise muslims to make a will . Keep all properties with you till your death.

Allah bless you with Khair.