A will is generally understood as an instrument of full testamentary freedom - the testator decides where everything goes. Under Muslim personal law, governed in India by the Muslim Personal Law (Shariat) Application Act, 1937, a will (wasiyat) is bounded in a way most testators don’t expect.
- The one-third ceiling. A wasiyat is valid only up to one-third of the estate. The remaining two-thirds must devolve according to the fixed intestate shares of Muslim succession law, whatever the will says about them.
- The heir restriction. Even that one-third generally cannot be bequeathed to someone who is already an heir - a person who would inherit anyway under those fixed shares - without the consent of the other heirs. It can go freely to non-heirs: a charity, a friend, a relative outside the succession line.
- When consent can be given. A bequest exceeding the one-third limit isn’t void outright, but it takes effect only if the heirs consent. Under Sunni law that consent must come after the testator’s death, so it cannot be secured in advance; Shia law permits consent given during the testator’s lifetime.
Free Outside the Family, Constrained Within It
The combined effect is that a Muslim will is a limited instrument for adjusting shares among family members, and a comparatively free one for directing a slice of the estate outside the family. A testator wanting to leave more to one child than the fixed shares provide is doing something the will alone cannot accomplish - it needs the other heirs to agree, after they already know what they are giving up.
No Drafting Fixes a Ceiling Set by Succession Law
This is a structural feature of the applicable succession law, not a drafting problem a better-worded will can solve. Where the intention genuinely is to direct assets differently from the fixed shares, the planning typically has to happen during the testator’s lifetime - through gifts (hiba) or other lifetime transfers that move the asset out of the estate before succession law reaches it - rather than through the will itself.
Plan during life, not through the will, where the intention is to depart from the fixed shares. A hiba or other lifetime transfer moves the asset out of the estate before succession law reaches it; a bequest beyond the one-third relies on heirs consenting after they already know what they are giving up.
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