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Wasiyat

Also written Muslim will

A will under Muslim law — valid in writing, orally or by gesture, made by a person of sound mind aged 15 or above, but limited to one-third of net assets, the rest passing to heirs.

In plain language

In Muslim law a will is called a Wasiyat. It follows rules quite unlike those of the Indian Succession Act that govern wills of Hindus, Christians and others.

Any person who is a major (15 years and above) and of sound mind can make one. No formalities are required: a Wasiyat can be in writing, oral, or even by gestures. It can be revoked at any time before death, expressly (tearing or burning it) or impliedly (for example, selling or gifting the same property to someone else later).

The defining limit is quantitative. A Muslim cannot dispose of more than one-third of his net assets by will; the remaining two-thirds must be available for distribution among the heirs under Muslim personal law.

How it works

Which law applies. For Muslims the Indian Succession Act, 1925 does not generally apply to testamentary or intestate succession; succession follows religious law. Non-testamentary succession is governed by the Muslim Personal Law (Shariat) Application Act, 1937, and testamentary succession by the Sharia law applicable to Shias and Sunnis. Exception: for immovable property in West Bengal, or within the jurisdiction of the Madras or Bombay High Courts, Muslims are bound by the Indian Succession Act for testamentary succession.

What happens to the two-thirds. Muslim law recognises two types of heirs:

  • Sharers — twelve relations entitled to fixed shares, including husband, wife, daughter, father, mother and certain sisters.
  • Residuaries — who take what remains after the sharers.

Some fixed shares from the workbook: a wife takes 1/4 if there are no lineal descendants, 1/8 otherwise; a husband takes 1/2 without descendants, 1/4 otherwise; a sole daughter 1/2; several daughters together 2/3. Where there are sons and daughters, daughters become residuaries and each son gets double each daughter. A widow's share is computed after funeral and legal expenses and debts.

Other features: no concept of birthright in ancestral property; per capita distribution under Sunni law and per strip under Shia law; a child in the womb inherits only if born alive; and where there is no legal heir, the government takes the property by escheat.

A worked example

Illustrative and simplified — actual shares depend on the full family position and school of law.

Imran, a Sunni Muslim, dies leaving property worth Rs 96,00,000. Funeral expenses and debts come to Rs 6,00,000, so net assets are Rs 90,00,000. His surviving heirs are his wife, one son and one daughter; his parents predeceased him. He had told his family before witnesses that Rs 40,00,000 should go to a school trust.

Step 1 — the will is valid in form. An oral Wasiyat made by a sane adult is valid.

Step 2 — but it is capped. One-third of net assets = 90,00,000 ÷ 3 = Rs 30,00,000. The trust receives Rs 30,00,000, not Rs 40,00,000.

Step 3 — the two-thirds go to heirs. Rs 60,00,000 remains.

HeirRuleAmount
WifeSharer, 1/8 (there are children)Rs 7,50,000
Son and daughterResiduaries, son takes double the daughterRs 52,50,000 split 2:1
— SonRs 35,00,000
— DaughterRs 17,50,000

The adviser's takeaway: a Muslim client who wants to benefit a charity, or one heir, beyond the law's shares cannot do it by will alone above the one-third line — lifetime gifts and other estate planning tools covered in Chapter 15 have to be considered.

Why NISM asks about it

Chapter 14 (Basics of Estate Planning), section 14.4.3 — Muslim Personal Law — covering sources of law, sharers and residuaries, testamentary and non-testamentary succession, per capita and per strip distribution, the rights of females, widows and a child in the womb, escheat and Wasiyat. Expect recall questions: the one-third limit, the minimum age of 15, the absence of formalities, and the widow's 1/4 or 1/8 share.

Common exam traps

  • One-third limit on what can be bequeathed; two-thirds go to heirs.
  • Age 15 and above, of sound mind — not 18.
  • No formalities — written, oral or by gesture are all valid.
  • Revocable any time before death, expressly or impliedly.
  • Widow: 1/4 without children, 1/8 with children. Husband: 1/2 or 1/4.
  • With sons present, daughters are residuaries, and each son takes twice a daughter's portion.
  • No legal heir → escheat to the government.
  • Immovable property in West Bengal or within the Madras or Bombay High Court jurisdiction follows the Indian Succession Act for testamentary succession.

Check yourself

  1. 1.What proportion of his net assets may a Muslim dispose of by Wasiyat, and what formalities are required?

    1. a)The whole estate, and the will must be in writing and attested
    2. b)Not more than one-third, and no formalities are required — it may be in writing, oral or by gestures
    3. c)Not more than one-half, and the will must be registered
    4. d)Two-thirds, and the will must be witnessed by two adult males
    Show the answer

    Answer: (b) Not more than one-third, and no formalities are required — it may be in writing, oral or by gestures

    Muslim law recognizes that a person CANNOT DISPOSE OFF MORE THAN ONE THIRD OF HIS NET ASSETS BY WILL, while the remaining two thirds should be made available for distribution among the heirs. And Muslim law requires NO FORMALITIES of creating a Will. A will can be made IN WRITING, ORAL OR EVEN BY GESTURES. Any person major (15 years and above) and of sound mind may make one, revocable at any time expressly or impliedly.

Where this is taught

Free preparation for NISM Series X-B

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