Wills under Muslim law

1. Meaning and source

A will (wasiyat) is a disposition of property that takes effect on the death of the testator. The Quran permits it but treats it as an exception to the fixed scheme of inheritance: the law of succession gives the heirs two-thirds of the estate beyond the testator's reach, and the will operates only on what is left. The Prophet's tradition limiting a bequest to one-third, because it is better to leave one's heirs well off than dependent on others, is the source of the limit.

Testamentary succession is not in the list in section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Section 3 lets a Muslim who is competent to contract make a declaration that the Act shall apply to him in matters of wills, adoption and legacies. In practice courts apply Muslim law to the wills of Muslims in any event, because Part VI of the Indian Succession Act, 1925 does not apply to them: section 58(1) excludes testamentary succession to the property of any Muhammadan. A Muslim who marries under the Special Marriage Act, 1954 is governed by the Indian Succession Act instead.

2. Formalities and capacity

• No form is prescribed. A will may be oral or written. A written will need not be signed or attested, and no registration or probate is required. What must be proved is a clear intention that the disposition take effect after death.
• Testator. Any Muslim of sound mind who has attained majority (eighteen under the Indian Majority Act, 1875) may make a will. A will made by a minor or a person of unsound mind is void, though a minor's will may be ratified after he attains majority.
• Suicide (Shia law). A will made after the testator has taken poison or wounded himself with intent to die is void if he dies of it; a will made before the attempt is valid. Sunni law has no such rule.
• Legatee. Any person capable of holding property may take: a Muslim or a non-Muslim, an institution, a child in the womb if born within six months of the will (under Hanafi law). A bequest to a person not yet conceived fails.
• Subject-matter. The property must exist at the testator's death and must be capable of transfer. A bequest of a usufruct for life is valid.

3. The bequeathable third

The third is calculated on the estate that remains after paying funeral expenses and debts. A bequest beyond the third is not void. It is valid up to one-third, and the excess takes effect only if the heirs consent.

• Sunni law. Consent must be given after the testator's death. Consent given during his lifetime is ineffective, because until then nobody is an heir and the right is a mere expectancy. Consent may be express or inferred from conduct (for example, allowing the legatee to take possession).
• Shia law. Consent given either before or after the death binds the heir who gave it.
• Partial consent. If some heirs consent and others do not, the excess is paid out of the shares of the consenting heirs only.
• No heirs. Where there is no heir at all, the bar does not operate and the whole may be bequeathed; a spouse who is the only heir may also consent.

4. Bequest to an heir

Under Sunni law a bequest to an heir, even within the third, is invalid unless the other heirs consent after the death. Whether a person is an heir is judged at the testator's death, not at the date of the will. Under Shia law a bequest to an heir within the third is valid without anyone's consent; only the excess over one-third needs consent.

5. Abatement, revocation and lapse

• Abatement. Where bequests to strangers exceed the third and the heirs refuse consent, Sunni law reduces them rateably. Shia law pays them in the order in which they appear in the will until the third is exhausted.
• Revocation. A will may be revoked at any time, expressly or by conduct, such as selling or giving away the property bequeathed. A later will disposing of the same property revokes the earlier bequest to that extent.
• Lapse. Under Sunni law a legacy lapses if the legatee dies before the testator. Under Shia law it passes to the legatee's heirs unless the testator revokes it.

6. Death-bed dispositions (marz-ul-maut)

A gift made during marz-ul-maut (death-illness) takes effect as a will. An illness is death-illness if three things concur: the donor is suffering from a malady, it induces in him an apprehension of death, and he in fact dies of it. A long-standing illness that the person has lived with for a year or more is ordinarily not treated as death-illness unless it worsens suddenly. The consequence is that a gift in death-illness, though it must still satisfy the requirements of a gift (declaration, acceptance and delivery), is valid only to the extent of one-third and, under Sunni law, cannot be made to an heir without the other heirs' consent. An acknowledgment of a debt made in death-illness in favour of an heir is treated the same way.

7. Will and gift distinguished

• A gift takes effect immediately; a will takes effect on death.
• A gift needs delivery of possession; a will needs none.
• A gift may comprise the whole of the donor's property and may be made to an heir; a will is limited to one-third and (Sunni) cannot benefit an heir without consent.
• A completed gift is revocable only in limited cases and, after delivery, generally only by a court decree; a will is revocable at any time.
• Gift of an undivided share (musha) raises difficulty under Hanafi law; a bequest of an undivided share raises none.

8. Problem

Hamid, a Hanafi Muslim, leaves a son, a daughter and a net estate of Rs 9 lakh after debts and funeral expenses. By a written, unattested will he leaves Rs 4 lakh to his friend Yusuf and Rs 1 lakh to his son. During Hamid's lifetime the daughter signed a paper agreeing to the will. After his death the son agrees; the daughter refuses. Decide.

Issue. Whether the bequests are valid beyond the bequeathable third and in favour of an heir.

Law. No formality is needed for a Muslim will. A bequest to a stranger is valid up to one-third of the net estate; the excess and any bequest to an heir need the consent of the other heirs, which under Sunni law must be given after the death. Partial consent binds only the consenting heir's share.

Application. The will is valid in form. One-third of Rs 9 lakh is Rs 3 lakh, so Yusuf takes Rs 3 lakh without anyone's consent. The excess of Rs 1 lakh, and the Rs 1 lakh to the son, need consent. The daughter's lifetime consent is ineffective and she refuses after the death. The son cannot consent to a bequest to himself so as to bind his sister. The son's own consent to Yusuf's excess binds his share: the excess Rs 1 lakh is borne out of his share alone, in the proportion his share bears to the whole (two-thirds), so Yusuf gets a further Rs 66,667 or so. The bequest to the son fails.

Conclusion. Yusuf takes about Rs 3.67 lakh; the residue goes to the son and daughter in the ratio 2:1, with the son's share reduced by the part of Yusuf's excess he consented to. Under Shia law the bequest to the son within the third would have been valid without consent, and the daughter's lifetime consent would have bound her.

How this is examined

The January 2026 paper set “bequeathable third” as a short note: define the third, explain that it is computed after debts and funeral expenses, state the consent rule with the Sunni–Shia difference, and add the bar on bequests to heirs. A full question may ask for the rules of a valid will under Muslim law, or for the difference between a will and a gift, in which case use the list in section 7. Death-bed gifts often appear as a short note on marz-ul-maut. A problem like the one above, with a bequest over one-third and an heir who refuses, is the usual form when it is set as a problem.