Thursday, 30 April 2020

Notes on Testamentary Succession under Muslim law

Who can administer the estate of a deceased Muslim?
The estate of a deceased muslim is to be administered in accordance with the Indian Succession Act,which has replaced all Islamic rules in the matter.

The person entitled to administer the estate of deceased muslim are in the order of priority,the executor appointed by his will,or the administrator appointed by the court, in cases where the deceased has not left a will.Failing both,his heirs are entitled to administer his estate.
A muslim can not dispose of by will more than one-third of what remains of his property,after payment of his funeral expenses and debts,and remaining two thirds must go to his heirs as on intestacy.



Three essential characteristics of a will under muslim law are:



1) Capacity to make a will:- A muslim who is of sound mind,and who is not minor may make a valid will.Minority under Muslim law terminates on the completion of fifteen years of age.But According to Indian Majority Act 1875,the age of majority is the completion of 18 years,which is extended to 21 years where a guardian has been appointed for the property or person of the minor under the Act,or where the minor is under the guardianship of a guardian under the court of wards Act.But the Act does not affect the capacity of any person to act in the matter of marriage,dower,divorce and adoption as per S 2(a) of Indian Majority act .Thus the Act has modified muslim law on the question of minority,except in the case of dower,divorce and marriage.Thus a muslim who is less than 18 years of age can not make a valid will.

2) formalities:- No particular form is required to make a valid will.Any unequivocal expression of a testamentary nature will suffice.It may be made either verbally or in writing.If oral,no specific number or class of witnesses need be present.Even if it is in writing,it need not be signed by the testator or attested by a witness.

3) Property in respect of which a will can be made:- Any property which is capable of being transferred,and which exists at the time of death of testator may be disposed of by will.



FIVE RESTRICTION ON MUSLIM BEQUESTS


1) Bequest to an heir:- Under Sunni law,a bequest in favour of an heir is invalid,unless the other heirs consent to it after the testator's death.
2) Bequest to an unborn person:-  Under Sunni law,a bequest to an unborn person is void.But bequest to child in the womb of mother is valid.
3) Bequest to the testator's murderer:Under Sunni law,a bequest to person who causes death of testator,whether intentionally or accidentally is void.
4) Bequest of more than one-third of testator's property:- Bequest in excess of legal third can not take effect and will abate proportionately,if the heirs do not consent to the excess taking effect after the death of the testator.
5) Creation of unknown estates:- A muslim can not create by will,an estate repugnant to the principles of muslim law.Bequest in futuro or contingent bequests are void according to muslim law.

Revocation of Muslim wills
A testator may revoke his will at any time, expressly or tacitly.Thus when the testator destroys subject-matter of his bequest,or completely alters its nature,or transfers it to another person in his life time,revocation may be inferred.But the marriage of the testator after the making of the will does not operate as a revocation of the will.This rule is contrary to rule under The Indian Succession Act,where marriage of the testator revokes his will.

Lapsing of legacies:- Under Sunni law if the legatee does not survive the testator,the legacy lapses and forms part of estate of the testator.

Abatement of legacies:- In Sunni law if the bequests exceed the bequeathable third, and the heirs do not consent,the bequest abate rateably.

Devolution of inheritance
 Estate of deceased muslim vests in his heirs immediately on his death,and may be distributed among his heirs even before the payment of his debts,unless the estate is insolvent.Liability of each heirs for debts of deceased is proportionate to share of assets received by them.

Position of executor of a muslim will
As per S 211 of Indian Succession Act,an executor of muslim's will is his legal representative for all purposes,and all the property of deceased vests in him;therefore he has the power to dispose of the property in due course of administration.

Probate of muslim will,when necessary
A muslim will may after due proof be admitted in evidence though no probate has been obtained. The position of the executor of a muslim will is governed S 307 of Indian succession Act.The property of the testator vests in him.In case of intestacy,his heirs are not required to obtain letter of administration(S 212 and 213 of Indian Succession Act). An oral will after proof be admitted to probate.

Alienation by an heir of his share before payment of debts
An heirs may transfer his own share even before distribution of the estate, and pass a good title to a bonafide purchaser for value notwithstanding that the debts of the deceased are not paid.
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