A Muslim cannot execute a will for more than one-third of his share in a property or more than one-third of his estate without the consent of all legal heirs.
To understand the law dealing with wills, it would be prudent to refer to Chapter IX of Mulla’s Principles of Mahomedan Law dealing with Wills. Rules 115 to 117 are relevant to understand the provisions relating to Wills and power to make a will.
115. Persons capable of making wills– Subject to the limitations hereinafter set forth, every Mahomedan of sound mind and not a minor may dispose of his property by will.
116. Form of will immaterial– A will (Vasiyat may be made either verbally or in writing.
117. Bequests to heirs– A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator (l). Any single heir may consent so as to bind his own share (m).
118. Limit of testamentary power– A Mahomedan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator (e).
The Hon’ble High Court of Patna in Abdul Manan Khan Vs. Murtuza Khan, [AIR 1991 Pat. 154 at 159, 16 & 161] explains the essentials of a valid Will as under:-
- (i) Any Mahomedan having a sound mind and not a minor, may make a valid will to dispose of the property.
- (ii) So far as a deed of will is concerned, no formality or a particular form is required in law for the purpose of creating a valid will. An unequivocal expression by the testator serves the purpose.
- (iii) A bequest in favour of an heir is invalid unless the other heirs consent to it after the testator’s death. For the purpose of giving effect to a will whereby a testator has bequeathed more than 1/3rd interest either to a testator or to a heir, consent is required in relation thereto of the heirs only after the death of the testator. Thus even a consent by the heirs of the testator during his lifetime in such a case does not sub-serve the requirement of law. For these reasons only, a provision has been made to obtain consent of the heirs after the death of the testator; if by reason of a will more than 1/3rd of the properties is sought to be bequeathed to an outsider, and to any extent to a heir.
