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Raja Rajan (Prop.)     14 June 2012

Making will under islamic law

Mr. A is a 75-year-old Muslim (Sunni). Mrs B is his wife aged 65. Mr. A owns a flat. They had a son who expired recently. Daughter-in-law has gone to her partent's home with her 7 year old son. Mr. A & B gave her whatever jewellery she had, and also gifted their share of two plots to their grandson. Mr. A and B now stay with their daughter's family. 

Now Mr. A wants to make a will so that both his grandson and daughter can have equal shares after his death. Is it possible under Islamic law? The flat is wholly owned by Mr. A and is it possible to give half share to his daughter who is married and settled. And, what kind of guardianship is to be mentioned in the will for the 7 year old grandson?

Thanks in anticipation



Learning

 2 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     14 June 2012

Dear Querist, 

Islamic Law in this regard is quite peculiar, It states that a Muslim cannot give away property more than 1/3rd by will. Rest of the property devolves by ordinary succession among legal heirs (which includes Mr.A's wife - B). In case of more than 1/3rd being given by will consent of heirs is required after the death of person. Since he is giving the property equally to Daughter and Son's Son. It can operate only if all other legal heirs (can't say who all as I don't know the family pedegree) consent to this bequest.  In case they all consent - the daughter takes property in her own right, as regard predeaceased son's minor son - for him the property would be recieved by natural guardian, after father (in absence of father's will) father's father is the natural guardian under Islam (and not mother). Here it is advisable he also appoints a guardian to the child by his will (he has the power) he can appoint anybody to hold the property in trust for child after his death. 

He can also contemplate gifting the property in his lifetime, by complying with the requirements of Muslim Hiba. 

 

 

Hope this answer is satisfactory to you !

Raja Rajan (Prop.)     15 June 2012

The family consists of:

Mr. A and Mrs. B (wife of Mr. A)

Mrs D (daughter-in-law) and Master E (both don't live with Mr. A - but stay with D's parents)

Mrs E (daughter) and her husband + three children.

Please throw some more light on the legal possibilities of giving the property to daughter and grandson.

 


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