Intro vivo trust
yusuf
(Querist) 27 June 2013
This query is : Resolved
If my father makes intro vivo trust instrument and distributes his property in his life time, can he exclude the 2 sons from benefiting from his property?
Can the 2 son ever object to this in a court?
My original question was : My father is thinking of drafting his last and final will.
He has 4 children (3 sons and 1 daughter) are from his current and first marriage that are living in UK but are NRI status (non resident Indians) of Indian origin, and 2 children (2 sons) living in India are from his 2nd marriage making total of 6 children.#
His 2nd marriage has been dissolved and divorce was settled in 2003. In the divorce settlement at the time both sons from 2nd marriage were given share of father’s property which was demanded by ex wife (again determined as per court decree).
The 2 sons from 2nd marriage have not been good sons, and have caused much harm to father by way of mental and physical manner fathers age is 75 years. They have also committed criminal fraud and have laundered over Rs25,00,000-00 possibly more from father’s bank account over past year by forging fathers sign on father’s bank account cheque book. They have also taken advantage of fathers vulnerability. All this with the advice of the ex-wife who has misguided for self enrichment through wrongful means.
Father who is Muslim by religion would like to make final will in favour of 4 children (3 sons and 1 daughter) from current and 1st wife only, he wishes to exclude the 2 sons from 2nd marriage from ex wife. He will also be attaching an affidavit stating why he wishes to exclude with his reasons.
He has been given advice by friend, even though property was given to 2 sons from ex-wife in 2003 as settlement, they still have right to inherit property after the demise of father even though father excludes these 2 sons from will.
This is because the Indian “Succession Act 1925” does not apply to Muslims when drafting a will as Muslims are governed by “Mohammed law” the Muslim law.
The property in question is both agriculture land and residential property.
My questions are:
1. Does father have any control of what happens to his property after his death according to Indian law?
2. Can father exclude these 2 sons from will?
3. How can father avoid from 2 sons inheriting his property and wealth?
Your kind advise and reply was:
Any muslim has absolute right of inter vivos
transfer in respect of any property self acquired or inherited.
Inter vivos transfer are those where title passes spontaneously after the execution of the deed in the very life time of the owner which INCLUDES NOT ONLY SALE BUT A HIBBA TOO.
AS REGARDS TO WILL OR A HIBBA MADE ON DEATHBED THE VALIDITY THEREOF IS RESTRICTED TO 1/3RD UNLESS DEPRIVED HEIRS OR RESIDUARIES ASSENT TO THE SAME.
Dr. Jyothi Vishwanath
(Expert) 03 July 2013
1. Muslim person can gift whole of his property during his lifetime.
2. He cannot make a will for whole property.
3. Even if he makes a will, he can only bequeath 1/3 by will.
4. 1/3 should not be given to heirs without the consent of other heirs under a will.
5. Muslim person cannot prohibit property from being divided after his death
6. Quran has fixed the share of the heirs. So a person cannot himself exclude any heir.
7. One can only give 1/3 extra to an heir with the consent of others but cannot exclude an heir.
