Abstract
This article examines whether a widowed Muslim mother in Pakistan, having one son and one daughter, can make a will directing that her property be distributed equally between both children after her death. It argues that such a testamentary arrangement is not legally effective under Islamic law as applied in Pakistan because the son and daughter are Quranic heirs, and the son’s share is ordinarily double that of the daughter. A Muslim’s testamentary power is restricted by two settled principles: first, a will cannot exceed one-third of the net estate without heirs’ consent; second, a bequest in favour of an existing legal heir is ineffective unless the other heirs consent after the testator’s death. The lawful practical alternative is a lifetime transfer by way of Hiba through a properly drafted and registered gift deed, accompanied by acceptance and delivery of possession.
1. Introduction
The question of succession often arises not merely as a legal problem but as a family, moral, and social concern. Many parents wish to treat their children equally, especially where a daughter has contributed to the family, cared for the parent, or is economically weaker than the son. However, in Pakistan, where Muslim personal law governs inheritance among Muslims, testamentary freedom is not absolute.
A widowed mother who owns property and has one son and one daughter may desire that, after her death, both children inherit equally, that is, one-half each. While this intention may appear fair from a modern equality perspective, it cannot be achieved through a will if the mother is Muslim. Islamic inheritance law fixes the daughter’s and son’s shares. In the ordinary case of one son and one daughter, the son receives twice the share of the daughter.
The correct legal route is therefore not a will, but a lifetime gift, known in Islamic law as Hiba.
2. Legal Framework of Muslim Succession in Pakistan
Muslim succession in Pakistan is governed by Islamic law, as applied through Muslim personal law and constitutional principles. Article 227 of the Constitution of Pakistan requires existing laws to be brought into conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah. The West Pakistan Muslim Personal Law (Shariat) Application Act, 1962 is also listed among Pakistan’s federal laws and forms part of the legal framework through which Muslim personal law applies to matters including succession and inheritance.
Unlike common law systems where a person may often dispose of most property by will, Islamic law gives legal heirs fixed rights which arise on death. A will cannot be used as an instrument to rewrite Quranic inheritance shares.
3. Meaning and Nature of Will-Wasiyyat
A will, or Wasiyyat, is a testamentary declaration by which a person expresses how property should be dealt with after death. It does not transfer ownership during lifetime. It becomes operative only upon death, and even then only within the limits recognized by Islamic law.
The fundamental principle is that the estate of a deceased Muslim is first applied toward funeral expenses, debts, and lawful liabilities. Thereafter, any valid will is given effect within permissible limits, and the remainder passes to Quranic/legal heirs.
4. The Two Major Restrictions on a Muslim Will
4.1 The One-Third Rule
A Muslim can generally make a will only up to one-third of the net estate. Any bequest beyond one-third is not enforceable unless the legal heirs consent after the testator’s death. Islamic legal scholarship and Pakistani judicial reasoning recognize that a bequest exceeding one-third cannot operate against the rights of heirs without their consent.
The rationale is that inheritance shares are not merely private expectations; they are legal entitlements created by Shariah.
4.2 No Will in Favour of a Legal Heir
The second restriction is even more important in the present scenario. Islamic law recognizes the maxim:
“There is no will for an heir.”
This means that a Muslim cannot make an effective will in favour of someone who is already a legal heir, unless the other heirs consent after the testator’s death. Since both the son and daughter are legal heirs, a will giving them altered shares cannot automatically prevail over the prescribed inheritance scheme.
5. Application to a Widowed Mother with One Son and One Daughter
Where a Muslim woman dies leaving one son and one daughter, both children inherit as residuary heirs. The general rule is:
| Legal Heir | Share |
| Son | 2/3 |
| Daughter | 1/3 |
Thus, a direction in a will that both should receive 50% each would disturb the Quranic ratio. It would effectively reduce the son’s lawful share and enlarge the daughter’s share beyond what she would receive through inheritance.
This cannot be done by will alone.
The will would be vulnerable because:
1. Both beneficiaries are legal heirs.
2. The will attempts to alter fixed inheritance shares.
3. Any benefit to one heir beyond the lawful share requires post-death consent of the other heir.
4. Consent given during the mother’s lifetime is not conclusive because inheritance rights arise only upon death.
Therefore, the mother cannot legally ensure equal distribution after death through a will.
6. Why Consent After Death Matters
A common misconception is that children may sign a document during the parent’s lifetime agreeing to equal distribution after death. Such an arrangement remains legally uncertain because, before death, heirs have no vested inheritance right in the property. Their expectancy is not the same as ownership.
After death, however, inheritance rights crystallise. At that stage, an heir may voluntarily relinquish, transfer, or consent to a variation of shares. But relying on future consent is risky. A son may later refuse consent, or his own heirs may dispute it if he dies before the mother. Therefore, a will is not a secure instrument for achieving equal distribution.
7. The Correct Legal Solution: Lifetime Gift- Hiba
The legally sound mechanism is a lifetime gift. In Muslim law, Hiba means an immediate and voluntary transfer of property without consideration. Unlike a will, it operates during the donor’s lifetime.
A valid Hiba requires three essential elements:
1. Declaration of gift by the donor;
2. Acceptance by the donee;
3. Delivery of possession.
Pakistani case-law summaries and legal reporting consistently state these three essentials: offer/declaration, acceptance, and delivery of possession. A valid gift becomes complete when these requirements are fulfilled.
8. Why Gift Can Achieve What a Will Cannot
A lifetime gift is legally different from inheritance. Once the mother transfers property during her lifetime, the gifted property no longer remains part of her estate at death. Therefore, it is not distributed under inheritance rules.
She may therefore gift:
Donee Gifted Share
Son 50%
Daughter 50%
This is permissible provided the gift is genuine, immediate, accepted, and followed by transfer of possession.
9. Importance of Registered Gift Deed
Although Muslim law recognizes oral gifts, a registered gift deed is strongly advisable in Pakistan because property disputes frequently arise after death. Courts scrutinize gifts carefully, particularly when a gift affects inheritance expectations.
A registered gift deed provides:
1. documentary proof of intention;
2. evidence of donor’s free consent;
3. details of property;
4. proof of acceptance;
5. recital of possession;
6. basis for mutation in revenue or municipal records;
7. protection against future allegations of fraud, coercion, or fabrication.
However, registration alone is not enough. The gift must still satisfy the substantive Islamic law requirements of declaration, acceptance, and possession.
10. Delivery of Possession: The Most Crucial Requirement
Possession is often the decisive issue in litigation. For immovable property, possession may be actual or constructive. For example:
- physical possession may be handed over where the property is vacant;
- symbolic possession may be transferred through keys, documents, or control;
- constructive possession may be reflected through mutation, revenue entry, rent collection, or change of management.
The donees must be placed in a position where they can exercise ownership rights. A mere paper transaction, while the mother continues to deal with the property as absolute owner, may later be challenged.
11. Suggested Structure of a Proper Gift Deed
A carefully drafted gift deed should include:
1. full particulars of the donor;
2. full particulars of the son and daughter as donees;
3. complete description of the property;
4. clear declaration that the donor is absolute owner;
5. statement that the gift is made voluntarily and without coercion;
6. equal undivided shares: 1/2 to son and 1/2 to daughter;
7. express acceptance by both donees;
8. recital of delivery of possession;
9. authority to mutate/transfer property records;
10. two independent witnesses;
11. registration before the competent Sub-Registrar;
12. biometric verification where applicable;
13. tax/stamp duty compliance.
12. Distinction Between Will and Gift
| Point | Will / Wasiyyat | Gift / Hiba |
| Operates | After death | During lifetime |
| Ownership transfer | Deferred | Immediate |
| Subject to one-third rule | Yes | No |
| Can alter heirs’ shares | No, unless heirs consent after death | Yes, if validly completed during lifetime. |
| Beneficiary may be legal heir | Restricted | Permissible |
| Possession required | No immediate | Essential |
| Best for equal shares between son and daughter | No | Yes |
13. Practical Legal Advice for the Mother
The mother should not rely on a will to give equal shares to her son and daughter. Instead, she should execute a registered gift deed during her lifetime.
The safest legal course is:
1. obtain updated title documents;
2. verify that the property is free from encumbrances;
3. prepare a gift deed giving 50% undivided share to the son and 50% to the daughter;
4. ensure both children accept the gift;
5. deliver actual or constructive possession;
6. register the deed;
7. enter mutation in revenue/municipal/cooperative society records;
8. retain certified copies.
14. Possible Reservation of Life Interest
If the mother wishes to retain residence or income during her lifetime, the deed must be drafted very carefully. She may gift ownership while reserving a limited life right of residence or usufruct, depending on the nature of property and applicable law. But such clauses must not make the gift illusory. If she retains complete control and the donees receive no real possession or ownership, the transaction may later be attacked as a disguised will.
15. Conclusion
A widowed Muslim mother in Pakistan cannot validly ensure by will that, after her death, her property shall be distributed equally between her son and daughter. Such a will would conflict with Islamic inheritance principles because the son and daughter are legal heirs and their shares are fixed by law.
The lawful and practical solution is a lifetime Hiba. By executing a properly drafted and registered gift deed in favour of both children in equal shares, supported by acceptance and delivery of possession, the mother can legally achieve the intended 50/50 distribution.
The central legal distinction is simple but decisive:
A will operates after death and is restricted by inheritance law; a gift operates during life and, if validly completed, removes the property from the estate.
References
1. Constitution of the Islamic Republic of Pakistan, 1973, Article 227.
2. West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.
3. Registration Act, 1908.
4. Transfer of Property Act, 1882.
5. Mulla, Principles of Mahomedan Law.
6. D.F. Mulla, Mahomedan Law, sections on wills and gifts.
7. Fyzee, Outlines of Muhammadan Law.
8. Tyabji, Muslim Law.
9. Sahih al-Bukhari, Hadith on “one-third, and one-third is much.” 10. Pakistani case-law principle: valid Hiba requires declaration, acceptance, and delivery of