Abatement of Legacy in Muslim Law

Under Muslim law, a Muslim can bequeath his property by will to a person other than his heirs, provided that this inheritance does not exceed 1/3 of his estate According to Shia law, the inheritance expires only if the legatee dies without leaving an heir, or if the testator revokes the will after the death of the legatee. However, if, even after the death of the legatee, the testator does not revoke the will on the date of execution of the will, the resulting benefit shall be transferred to the heirs of the legatee. For example, «T» is a Sunni Muslim who makes a will in favor of A, B, and C. According to the will, he orders to give Rs. 4,500 / – to A, Rs. 3,000 / – to B and Rs. 1,500 / – to C, and his total ownership is Rs. 9,000 / -. Now, according to the rule, only a third of the total ownership is inherited. One third of Rs. 9,000/- corresponds to Rs.

3000 /- which is the required hereditary property. It can be observed that the lecator divided the property in a ratio of 3:2:1 to A, B and C. By applying the taxable reduction rule, the shares of A, B and C are reduced in the same proportion, i.e. 3:2:1. Thus, the share of A becomes Rs. 1,500/-, the share of B becomes Rs. 1,000/-, and the share of C becomes Rs. 500/-.

Shia law does not recognize the principle of reduction. Of several inheritances, the first predominates in time until the third hereditary is exhausted. If several inheritances can be found in a will, priority depends on the order in which they are mentioned. It should be noted, however, that where there are successive inheritances of the exact third to two different persons, the subsequent inheritance prevails. This rule of reduction is followed by Sunni law. In this method, if a Sunni Muslim bequeaths his property in a certain proportion, which is the limit of one third, then the reduction is made in the same proportion in which the goods were distributed. Acceptance of inheritance before the death of the testator is ineffective. This means that a Muslim is allowed to make a will in relation to his 1/3 of his property completely to a foreigner and the remaining property would be forcibly given to his legal heirs, but in this case, the inheritance is in favor only of the legal heirs and not for foreigners If the legatee dies before the testator, the inheritance expires under Sunni law. According to Shia law, inheritance passes to the heirs of the legatee if the legatee dies before the testator, unless he is revoked by the testator. If a bequest exceeds the limit of one third and the heirs refuse to consent, the relationship of the legatees is subsidized to maintain the hereditary third-party rule.

This reduction in the inheritance of legatees is called a reduction in inheritance. In Sunni law, the reduction is taxable (proportional), while it is preferred in Shia law. Under Sunni law, if the legacies exceed one-third and the heirs do not accept them, the legacies are deducted in instalments. According to Shia law, there is no paid discount. Inheritances that precede the date take precedence over those that are later. But where there are successive inheritances, the whole exact third, the subsequent inheritance will be a revocation of the first. Testamentary power and its limits (hereditary a third party) A Muslim does not have the unlimited power to dispose by will. There are two limits to a Muslim`s power to dispose of his property by will, which refer to the person for whose benefit the inheritance is made, and to the extent that he can dispose of his property. This is obvious, because the purpose of this restriction is to protect the interests of the heirs of the testator`s heir.

No Muslim can make an inheritance of more than a third of his net worth after paying funeral expenses and debts. If the inherited property exceeds one third, the consent of the other heirs is essential (Sunni and Shia laws). A bequest of all property to an heir to the exclusion of other heirs is void – Husaini Begum V. Mohd. Mehdi If the heirs refuse their consent, the inheritance would be valid for only one third of the property and the rest of the two-thirds would go through the legal succession. # With respect to the inheritance of a third party to an heir, the consent of the other heirs is required in Sunni law, but not in Shia law. In the case of a non-heir (foreigner), the consent of the heirs is not required in both cases. # The above hereditary third rule does not apply to a case where the testator does not have an heir. The government`s right to take over the estate of a hereditary person in no way restricts a person`s right to dispose of his or her property as he or she sees fit. Thus, the government is not the heir of a hereditary person. # A bequest made for pious purposes is valid to the extent that one-third of the property, under Sunni and Shia law.

# The «1/3 limit» rule does not apply when a Muslim marries under the Special Marriage Act of 1954, as he then has all the powers of a testator under the Indian Estate Act, 1925. Consent of the heirs Consent must come from the heirs and not from the presumed heirs. Whether or not a person is an heir is determined at the time of the testator`s death, since a person who is an heir at the time the will is made does not remain heir at the time of the testator`s death, and vice versa. The consent of the heirs under Sunni law can only be given after the death of the testator, while in Shiites it can be given before or after the death of the testator. Consent must be final, whether express or implied by positive behaviour, and the mere silence of an heir does not constitute tacit consent. The certification of the will by the heirs and the consent of the legatee who takes possession of the property were considered sufficient consent. In cases where only some of the heirs give their consent, the shares of the consenting parties are bound and the additional inheritance must be paid from the consenting heir`s share. The consent of the insolvent heirs has been declared effective when a legacy is validated. Once consent has been given, it cannot be revoked later. Similarly, consent cannot be given after an heir has previously rejected it.

Legacy to heirs and non-heirs If the testator makes a bequest to the heirs and non-heirs of the same inheritance, the legacy is not invalid in its entirety without the consent of the heirs, but becomes effective in respect of the non-heirs. The rule is that, as far as possible, the will receives the maximum effect it is capable of. For example, if the testator bequeaths all his property to an heir and a non-heir without the consent of the heirs, the non-heir will take one-third of the property and the rest of the two-thirds will go to the heirs of the testator by inheritance – Muhammad V. Aulia Bibi. Under Sunni law, inheritance expires if the legatee does not outlive the testator and is part of the testator`s estate. A will can be declared in favour of a non-Muslim, minor or mentally ill person. It is important to note that a legatee must be present and competent to own the property. Age, gender, caste, religion, gender and state of mind are insignificant to become a legitimate legatee. A charitable or religious institution is also a competent legatee, and any will that advocates it is legal. However, according to Shia law, if the legatee does not survive the testator, the inheritance does not expire, but passes to the heirs of the legatee. It is only when the legatee has no heirs that the inheritance expires. A situation may arise in which the legislator is Muslim when he executed the will, but then renounced Islam and was therefore recognized as non-Muslim at the time of his death.

A will made by such a Muslim is considered a valid will under Muslim law. The inheritance does not expire until the legatee dies without leaving an heir, or the testator himself revokes the will. Shia law recognizes another attenuation rule. According to this school, if the inheritable property exceeds one third of the total patrimony and the heirs refuse their consent, the rule of preferential distribution applies. This means that there will be no reduction in the legatees` shares, but that the share will be allocated according to preference.