Consent of heirs needed if bequest exceeds a third of estate - Livemint

Is it true that a Muslim can bequeath only one-third of his property through a will? Is there any provision through which he can give all his property to any one he wants through a normal will? Can he make a gift of all his property without any restriction of one-third in a gift deed?
—Neha Jaiswal

Muslims are governed by their personal (Sharia) law and by the rules of intestate succession as provided in this law. Strictly speaking, there is no restriction as to the person to whom a property can be given through a will. However, under Muslim law, there are a few restrictions as to the persons to whom a bequest can be made.

Bequest to an heir: Under Shiite law, Muslims can bequest one-third of their estate without consent of heirs. Consent of heirs is required if bequest exceeds one third of estate. Under Sunni law, bequest to an heir is invalid unless consent of heirs is obtained after death of testator.

Bequest to an unborn person: Under Shiite law, if the child in the womb is born within 10 lunar months, it is valid. Under Sunni law, the bequest to an unborn person is void, unless a child in womb is born within 6 months of the will.

Bequest to murderer: Under Shiite law if death is not caused intentionally, only then is it valid. Under Sunni law bequest to murderer is void.

The will of a Muslim is not required to be in writing. If it is in writing, it need not be signed and if it is in writing and signed, it need not be attested. Here are the essentials of a valid gift under Mohammedan law:

1. The donor must be at least 18 years of age and of sound mind. He may dispose of the whole of his property by gift to any person including a stranger.
2. There must be a declaration of the gift by donor and an acceptance of the gift by donee.
3. In case of movable property, it should be delivered.
4. In case of immovable property of which the donor is in possession, the donor should physically depart from the property and the donee must make a formal entry.
In case the immovable property of which the donor reserves the right to receive rent but continues to be in possession of the property, if the person to whom the gift is made does an act by which the property is conferred on him without possession being actually given, the gift is complete. If the immovable property is in the occupation of tenants, a request by the donor to the tenants to acknowledge the donee as the owner of the property will suffice.
5. In case of incorporeal property, the donor must show a clear intention to confer the property upon the donee.
6. In case of property which is held by a person against the will of the donor, gift of such property is not valid unless the donor recovers possession and puts the donee in possession of it.



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