Preparation of House Will as per Islamic Shariah
Nafees
(Querist) 01 January 2016
This query is : Resolved
Hi!
Is there any Muslim Lawyer who can guide and explain me the rules and conditions regarding preparing a Will as per Islamic Sharia?
Actually my Dad wants to make a proper will of our flat as per Islamic Law for property/house..
I stay in Thane so can someone tell me what are the requirements, documentation formalities, charges, consultation fees for making such type of Will, if I visit any Lawyer?
Kindly advice...
P. Venu
(Expert) 01 January 2016
What do you want - Muslim Lawyer or a professional in Muslim Law?
ABDUL RAZIQUE
(Expert) 01 January 2016
Mr. Nafees
It is the general rule under Muslim personal laws in India (Shariat) is that a Muslim may, by his will, dispose only up to one-third of his property which is left after payment of funeral expenses and debts without the consent of his heirs. The remaining two-thirds of the testator’s property must go to those who are his heirs at the time of his death. With respect to Shia Muslims, the bequest of the permissible one-third may be made either to an heir or to a non-heir. However, with respect to a Sunni Muslim, the one-third bequest may be made only in favour of a non-heir without the consent of his heirs. If it is made to an heir, it is invalid unless consent of heirs is obtained after death of testator, in which case it is valid.
However, the above restriction on disposition of property by will does not apply to a Muslim whose marriage is solemnized under the provisions of the Special Marriage Act, 1954 (instead of Muslim personal laws). This is because upon solemnization of marriage under this Act, the rules of Muslim personal law cease to apply to him with respect to matters of succession of his property. Accordingly, such a Muslim may, by his will, dispose his entire property without the requirement of his heirs’ consent.
It would also be open to a Muslim to transfer his entire property during his lifetime by way of a gift to any person, unless the gift is a marz ul maut (death bed) gift. Marz ul maut is regarded under Muslim laws to be a malady which induces an apprehension of death in the person suffering from it and which eventually results in his death. A gift made by a person suffering from marz ul maut cannot take effect beyond one-third of the estate of such donor after payment of funeral expenses and debt, unless the heirs of the donor give their consent after the death of the donor to the excess taking effect.
Kumar Doab
(Expert) 01 January 2016
The query has been addressed by experts.
Nafees
(Querist) 01 January 2016
Assalaamualaikum!
Mr. Abdul Razique, Jazak Allah Khair for giving a detailed explanation regarding the Will.
I wud like to mention that our residential flat is on my Mom's name so in this case my dad wants to make a proper Will where if he sells the flat then the distribution of the legal share in the total amount shud be as per our Shariat. I reside in the family of six members which includes my parents, my two younger brothers and one youngest sister.
For example if our Flat selling price is around 60 lacs so in this scenario how the gussa will be calculated and what or how much will be the sharing amount among the siblings as per Shariat if my parents are alive and also from the other point of view where we decides to sell our flat after the death of the real owner (parents)...??
Kindly advice...
Nafees
(Querist) 01 January 2016
How the Hissa will be calculated**
Anand Bali Adv.
(Expert) 01 January 2016
When the flat is in name of mother how Father can make will of it??
Improper query !! How the Hissa will be calculated where mother is alive and only God knows who will die first.
Sudhir Kumar, Advocate
(Expert) 01 January 2016
No table to agree or disagree since the query is solicited from experts of a particular community.
Kumar Doab
(Expert) 01 January 2016
Mr. Sudhir Kumar is right.
ABDUL RAZIQUE
(Expert) 01 January 2016
Nice question arise by Anand Bali.
Mr Nafees
As per your information, property is belong to your mother so your father can not Will the said property, Next one about the share in the property - as per Mohammedan Law Male and female have 2:1 ratio share in the deceased properties, Till alive no one successor has right in the property only has right to enjoy physically.
Anand Bali Adv.
(Expert) 01 January 2016
Thanks!! Mr Abdul Razique you rightly caught the point.
Devajyoti Barman
(Expert) 02 January 2016
I prefer not to reply as the author did not ask for reply from expert of other community.
Nafees
(Querist) 02 January 2016
Thank you very much Mr. Abdul. Now my query has been resolved completely...
Rajendra K Goyal
(Expert) 05 January 2016
Agree with the expert Devajyoti Barman.
T. Kalaiselvan, Advocate
(Expert) 07 January 2016
Agreed with the opinions of all experts giving explanation as well as pointing out the author's grave mistake while posting this query.
