I am a Sunni Muslim woman married to a non-Muslim man in India. We have both maintained our religious identities after marriage. We have not made a will and wish to make one now, but I have been informed that as a Muslim, I can only make a limited will. Please guide us.
– Name withheld on request
In India, Muslims are governed by personal law in matters relating to making of wills and succession. Under Muslim personal law, there are restrictions on the share of the estate that can be bequeathed under the will, and the eligible beneficiaries. Muslims are not permitted to bequeath more than one-third of their estate by way of a will. The remaining two-thirds of the estate is inherited by legal heirs as per Muslim law.
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Also, the bequest cannot be made to an heir under the will. However, heirs may consent, after the death of the testator, to a bequest of more than one-third of the estate.
These rules apply to both men and women. While you are Sunni, the rules for Shias are broadly similar, with some nuances, such as on timing of consent of heirs.
Individuals of other faiths in India are governed by the provisions of the Indian Succession Act, 1925 (ISA) in matters relating to the making of wills, and are permitted to bequeath their entire estate.
The situation is different for Muslims whose marriage has been solemnised and registered under the Special Marriage Act, 1954 (SMA) and not as per Islamic rituals. For such individuals, ISA and not Muslim law applies to wills and other succession-related matters.
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Since you have entered into an inter-faith marriage with a non-Muslim, it is presumed that your marriage was solemnised under the SMA. If so, you are governed by the ISA Act when it comes to making a will. Accordingly, you may make a will for your entire estate as per the ISA, without the need for your heirs to consent. Your non-Muslim spouse will also be able to make a will for his entire estate, as his position would not have change due to marriage.
Generally, it is recommended that you engage a qualified lawyer to ensure that a comprehensive, legally sound, and bespoke will is prepared. Note that certain states such as Uttarakhand and Goa have specific succession laws. You should seek advice if you’re resident or domiciled in such states.
Shaishavi Kadakia is a partner and Naomi Manoj is an associate at Cyril Amarchand Mangaldas, Mumbai.