Muslim law over a will
Saleem
(Querist) 09 December 2012
This query is : Resolved
Hi Sir
My father has made a Muslim Will. In this will he has given everything to my sisters and I am the only son. But as I have got married to a Muslim girl but of this will, he has not included me in the Will.
1)I would like to understand that after his death can I claim his property or a share of the property?
2) Also, can the will be changed in the period before his death by himself?
3) Is there any procedure to get the will registered or validate?
Regards
Saleem
Raj Kumar Makkad
(Expert) 09 December 2012
According to Muslim Law in India, any person, who is a major and is of sound mind, can make a will. Though under Muslim Law, a person attains majority at 15 years, but in India minority terminates at the age of 18 years, and if a guardian has been appointed by a Court for a minor, then minority will terminate at the age of 21 years.
A Muslim can bequeath any property movable or immovable, corporeal or incorporeal, which must be in existence and transferable at the time of testator’s death. Any person having capacity to hold the property can be a legatee (The person/s, in whose favour, the will is created is called ‘Legatee’). The Legatee may be a Muslim or a Non-Muslim, man or woman a major or a minor or even a child in the womb provided the child is born within 6 months of the death of the testator.
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. A Muslim wife can never be disinherited. However, if she is one of multiple wives, she is required to share her inheritance in equal portions.
So, in the light of above-noted provisions, you have no scope to claim.
Saleem
(Querist) 10 December 2012
thanks for the answer. but I would To know is there any procedure to my a will valid or if my dad writes a will anytime does it get valid automatically or should he have to get it stamped in court or anywhere.
Raj Kumar Makkad
(Expert) 10 December 2012
You need not to get it probated rather the same shall be treated a valid.
prabhakar singh
(Expert) 10 December 2012
The Islamic will is called al-wasiyya. a will is a transaction which comes into operation after the testator’s death. The will is executed after payment of funeral expenses and any outstanding debts. The one who makes a will (wasiyya) is called a testator (al-musi). the one on whose behalf a will is made is generally referred to as a legatee (al-musa lahu). Technically speaking the term "testatee" is perhaps a more accurate translation of al-musa lahu.
In traditional Sunni Islamic law the power of the testator is limited in two ways:
firstly, he cannot bequest more than 1/3 of his net estate unless the other heirs consent to the bequest or there are no legal heirs at all or the only legal heir is the spouse who gets his/her legal share and the residue can be bequeathed.
secondly, the testator cannot make a bequest in favour of a legal heir under traditional Sunni Muslim law. However, some Islamic countries do allow a bequest in favour of a legal heir providing the bequest does not exceed the bequeathable one-third.
Legal heir in this context is one who is a legal heir at the time of death of the testator.
A will comes in effect after death of testator and testator can change it till his last breath.
No registration is required for a will.
A will by Muslim can even be oral.
HENCE UNLESS YOU AGREE TO SANCTION THE WILL MADE BY YOUR FATHER IN FAVOR OF YOUR SISTER AFTER THE DEATH OF YOUR FATHER IT CAN NOT BE TREATED VALID AGAINST YOU AS IT IS NOT WITHIN LIMIT OF 1/3 BUT FOR THE ENTIRE.
Saleem
(Querist) 10 December 2012
thanks Prabhakar.
So you mean to say that after my father's death, I can fight for his property.
Raj Kumar Makkad
(Expert) 10 December 2012
If a Muslim bequeaths more than 1/3 share of his property by way of will, he requires the acceptance of all other beneficiaries like you in the given case.
