Islamic Personal Law-II

Topic;
Abatement of
Legacies

Teacher Ma’am Sabeen Arif

By Syed Faisal Hayat

R.No 01-177152-049

Date 22th March, 2018

LLB VI

Bahria University Islamabad

Contents
INTRODUCTION ............................................................................................................................................. 1
Abatement of Legacies.................................................................................................................................. 1
Case Law; .................................................................................................................................................. 1
Facts; ..................................................................................................................................................... 2
School Of Thoughts ....................................................................................................................................... 2
Sunni Law ...................................................................................................................................................... 2
Illustration I ............................................................................................................................................... 3
Illustration II .......................................................................................................................................... 3
Shia Law ........................................................................................................................................................ 4
Illustration I ............................................................................................................................................... 4
Bequest of Exact One-third ........................................................................................................................... 5
Bequests for pious purposes......................................................................................................................... 5
Difference between Sunni and Shia Law ...................................................................................................... 6
INTRODUCTION
Islam is not just a religion, it is more than that; it is a perfect way of life. Islam is direction from
Allah that guides us through life and to get ready for the life after death. It is for this reason
Allah also guides us through the process of death and dying. Death will come to each and every
one of us; however there are things we can do to make our passing somehow easier for those we
left behind. One of those things is to make sure we leave a legacy in the prescribed manner of
Islam.

“A man may do good deeds for seventy years but if he acts unjustly when he leaves his last
testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If,(on
the other hand), a man acts wickedly for seventy years but is just in his last will and testament,
the goodness of his deed will be sealed upon him, and he will enter the Garden.”1

Abatement of Legacies
A Muslim whether male or female can make a will of only one-third of his property without the
consent of the heirs. If the bequest exceeds the legal third and the heirs refuse their consent, the
totality of the Will does not become operative or invalid but the bequest abates ratably.2

The refusal of heirs does not make the will invalid but it abates ratably and is valid to the extent
of one-third of the property.

Case Law;
Title; Zardad - Petitiner

Versus

Ali Akbar and 8 others- Respondents

Citation; 1989 C L C 2028 (Peshawar)

Civil Revision No 222 of 1984, decided on 31st May, 1989

1
Ahmad and Ibn Majah.
2
Mulla, Mahmoden Law,142.

1
Facts;
Mst. Shazadgai had inherited 1/8th share from the property left by Mian Dad in the capacity of
his widow. The perusal of the Will show that she had made a bequest of her entire share in favor
of Zardad petitioner herein. According to section 117 of the Principles of Muhammadan Law by
D.F. Mulla (15th edition, 1967) “a bequest to a heir is not valid unless the other heirs consent to
the bequest after the death of the testator”. According to the section 118 of the same book a
Muslim cannot by Will dispose of more than 1/3rd of the surplus of his estate after payment of
funeral expenses, debts and bequests in excess of the legal third cannot take effect unless the
other heirs consent thereto after the death of the testator”. Two things quite clear from the
aforesaid principles of Islamic Law; firstly, that a Muslim cannot by Will dispose of more than
third of the property left by him/her; and secondly, even this one-third share will not be valid if
the bequest is not to a heir and the other heirs do not agree. The fact that Ali Akbar respondent
no.1 had filed a suit for possession of his share of the property left by his father and mother
would clearly indicate that he did not agree to the bequest made by his mother. She was entitles
to inherit 1/8th share from the property in dispute and she left behind “four sons”. This would
mean that each of the sons would get 1/4th share out of the share of the Mst. Shazadgai. As such
Ali Akbar respondent No.1 herein would be entitled to inherit 1/4th share of 1/8th share.

School Of Thoughts
Both Sunni school of thought and Shia school of thought have some differences regarding
abatement of legacies

Sunni Law

According to Sunni school of thought the general rule is that a bequest in excess of one-third of
the estate of the deceased would take effect with respect to one-third, with the excess going by
inheritance. If the legatees are more than one and the property given to them exceeds one-third,
the shares of each of the legatee would be reduced proportionately.3

3
Lexis Nexis, Family Law Lectures.

2
Illustration I
A man executes a will giving Rs 30,000 to A and Rs 20,000 to B. He leaves behind property that
comes to Rs 75,000 after payment of his funeral expenses. Here, the bequeathable limit would be
one-third i.e. Rs 25,000 while the bequest is for 50,000. The bequest in favor of A and B will be
proportionately reduced. The ratio of the bequest will be the same, but both the bequests will be
reduced to half i.e. the bequest due to A would become 15,000 and that of B would become
10,000. The sum total of these bequests would be Rs 25,000 and would be valid.

Total assets: Rs 75,000

Bequeath able one-third= Rs 75,000 X 1/3 = Rs 25,000

Amount given under the bequest = Rs 50,000

After rateable deduction

Amount to be given to A = Rs 15,000

Amount to be given to B = Rs 10,000.

Illustration II
A dies leaving behind assets worth Rs One and a half lakh. He had made a Will giving Rs
50,000 to his daughter, and Rs 50,000 to a friend. His wife and son, the other two heirs refuse to
confirm the bequest. Here the bequeath able limit is Rs 50,000. As under Sunni law the bequest
in the favor of the heir is not valid unless consented by the heirs, the bequest in favor daughter
would be inoperative. The Will in favor of the friend would be valid. The widow, son and
daughter would inherit from Rs One lakh, as per the laws of inheritance.

Daughter Friend

50,000 50,000

NIL 50,000

3
Total assets: Rs 150,000

Bequeathable one-third= Rs 150,000 X 1/3= Rs 50,000.

Amount given under the bequest = Rs 100,000

Amount to be given to Daughter = NIL

Amount to be given to Friend = 50,000

Shia Law
The Shia law is different. It does not recognize the principle of rateable distribution. Under the
law if a testator bequeaths1/3rd of his estate to A,1/4th to B, and 1/6th to C, and the heirs refuse
to confirm the bequest, A, legatee first named, takes 1/3 and B and C takes nothing.4

But instead of 1/3rd , 1/12th was given to A, then A would take 1/12th , and B would take1/4th
but C who is last in order would not be entitled to anything as; 1/12th +1/4th = legal third.

Under Shia law if the leqacy is given to two or more legatees under the same will, and it exceeds
the bequeathable one-third, with heirs refusing to consent to the bequest, the rule of
chronological priority is followed. The legatee whose name appears first in the Will is to be
given his share, followed by the second legatee and then the third and so on.5 The moment the
bequeathable one-third is exhausted; full effect has been given to the Will. Any other legatee,
whose name follows, after one-third of the assets have been distributed, will not be given
anything.

Where there are successive bequests of the exact third to two different person then the last
bequest would be the revocation of the first one.

Illustration I
A testator dies leaving behind assets worth Rs One lakh twenty thousand. He leaves a Will under
which he gives Rs 20,000 to A and Rs 30,000 to B and Rs 40,000 to C. As the total assets of the
testator are to the tune of Rs 120,000 bequeathable one-third 40,000. Following the rule of
chronological priority, as A name appears first he will be given Rs 20,000. The rest of Rs 20,000 will be
given to B. C will not get anything as the one-third i.e. Rs 40,000 is already exhausted.

4
Mulla, Mahmoden Law,142
5
Lexis Nexis, Family Law Lectures.

4
 A B C

20,000 30,000 40,000

20,000 20,000 ------

Total assets; Rs 120,000

Bequeathable one-third = Rs 120,000 X 1/3 = 40,000.

Amount given under the bequest = Rs 90,000

Applying the rule of chronological priority

Amount to be given to A= Rs 20,000

Amount to be given to B= Rs 20,000

Amount to be given to C= Nil.

Bequest of Exact One-third

Where under one legacy two or more persons have been given an exact one-third of the total
assets then the rule of chronological priority will not be applicable in that case.6

In such cases, the legatee whose name appears last gets the one-third given to him under the
Will, and the legatees whose names appear prior to him will get nothing.

Bequests for pious purposes

To the extent of one-third bequest of the property for pious purposes is valid under both Sunni
and Shia schools of thoughts. Pious purposes are divided into three categories.

1. Bequest for faraiz i.e., such is Hajj,zakat and expiation for prayers missed.
2. Bequest for Wajibat i.e., charity given on the day of breaking fast.

6
Lexis Nexis, Family Law Lectures.

5
 3. Bequest for nawafil i.e., building a mosque, making a school for poor.

In three classes bequests discussed the first class take precedence over bequests of the second
class and the third class, and the bequest of the second class take precedence over bequests of the
third class. In class 1 again, a bequest for hajj must be paid before bequest for Zakat and bequest
for Zakat must be paid before a bequest by way of expiation.

Difference between Sunni and Shia Law

Sunni Law Shia Law

 Bequest to an heir is invalid even  Bequest to heirs is valid up to the extent

to the extent of one-third of the of one-third of the property.
property

 Consent of heirs must be given

after the death of the testator.  Consent of heirs can be given before or
after the death of the testator.

 Legacy has to be accepted after

the death of the testator.  Legacy can be accepted before or after
the death of the testator.

 Where the bequest is to more

than one person in excess of one-  The rule of chronological priority applies
third of the property by the same in cases of bequest in excess of one-third
Will, the rule of proportional to two or more persons.
deduction applies.