Muslim Wills in India: the one-third rule

Which law applies

Succession for most Muslims in India is governed by Muslim personal law, applied through the Muslim Personal Law (Shariat) Application Act, 1937. The Indian Succession Act's rules on Wills largely do not apply to them. The exception is a Muslim who married under the Special Marriage Act, whose succession follows the Indian Succession Act.

The one-third limit

A Will, or wasiyat, can deal with up to one third of what is left after funeral expenses and debts are paid. The remaining two thirds pass to the heirs in the shares fixed by Muslim law.

A bequest to someone who is not an heir, such as a friend, a charity or a grandchild whose parent is alive, is valid up to one third without anyone's consent. Anything beyond one third needs the heirs' consent; if they refuse, the bequest is cut down to one third.

Gifts to heirs: Sunni and Shia law differ

• Sunni law: a bequest to an heir is not valid unless the other heirs consent, even if it is within one third. Their consent must be given after your death.
• Shia law: you can leave up to one third to an heir without consent. Beyond that, the heirs' consent can be given before or after your death.

Under both schools, leaving the whole estate to one heir and nothing to the others does not work.

Does it need to be written or registered?

Muslim law accepts an oral Will, and a written one needs no particular form. In practice, an oral Will is very hard to prove. Put it in writing, sign it before two witnesses, and register it. It costs little and settles the question of what you said.

Gifts during your lifetime

A gift (hiba) made during your lifetime is not limited to one third, but it is only complete when possession is handed over. It is a different tool from a Will, with its own consequences; take advice before using it to get around the one-third rule.

Frequently asked questions

General information, not legal advice.