Saheed Akinola esq
Writing a will under Islamic law varies greatly with that under English law both in form and in substance. Therefore, this article intends to explain the procedure of writing a will under Islamic law with reference to the testator, content, the bequeath, the legatee and forms of writing it. It is also the intent of the writer of this article to arouse awareness in people about the inevitability of death and the need to write one’s will before death comes knocking to avoid using the properties against the intent of the owner of the properties.
Will in Islam
A will, simply put, is instructions on how one’s property is to be disposed of after one’s death, or how it is to be given away after one’s death. Islamic will is called al-wasiyya. The will is executed after payment of funeral expenses and any outstanding debts [al-Nisa’ 4:11]. The one who makes a will (wasiyya) is called a testator (al-musi). The one on whose behalf a will is made is generally referred to as a testatee (al-musa lahu). The evidence that ‘will’ is prescribed in Islam is to be found in the Qur’aan and Sunnah, and the consensus of the scholars.
THE TESTATOR (AL-MUSI)
Every adult Muslim with reasoning ability has the legal capacity to make a will. An adult for this purpose is someone who has reached puberty. Evidence of puberty is menstruation in girls and night pollution (wet dreams) in boys. In the absence of evidence, puberty is presumed at the completion of the age of fifteen years. However, under English Law, he must be at least 18 years of age to make a valid will unless he is a military officer in which case you may make a valid will at the age lower than that.
The testator must have the legal capacity to dispose of whatever he bequests in his will. When making a will the testator must be of sane mind, he must not be under any compulsion and he must understand the nature and effect of his testamentary act. The testator must of course own whatever he bequests.
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Executor of the will
The executor of the will is the manager of the estate appointed by the testator. the executor has to carry out the wishes of the testator according to Islamic law, to watch the interests of the children and of the estate. The executor should be trustworthy, truthful and just.
OBLIGATORY WILL UNDER ISLAM
Writing a will may be obligatory with regard to the dues of others where there is no proof, lest they be lost or neglected, because the Prophet (peace and blessings of Allaah be upon him) said: “It is not permissible for any Muslim who has something to will to stay for two nights without having his last will and testament written and kept ready with him.” (Narrated by al-Bukhaari, al-Wasaayaa 2533). And it is allowed for a man to will that some of his wealth be used for charitable purposes, so that the reward for that may reach him after his death.
LIMITATION TO WILL WRITING IN ISLAM.
No Muslim is allowed to distribute his properties the way he/she likes because the sharia has made provision for the distribution of the testators’ estate to the heirs. The testator cannot make a bequest in favour of a legal heir under sharia. Legal heir in this context is one who is a legal heir at the time of death of the testator i.e those that are prescribed by sharia as entitled to inherit the deceased’s properties. The percentage and mode of sharing is prescribed by the qur’an and Sunnah. It is considered to be a major sin for a Muslim to distribute his properties to his heirs in his will. The testator cannot disinherit somebody that is not disinherited by the sharia. With regard to the distribution of personal belongings, he does not have the right to state how they should be distributed after he dies, because the share of each heir has been defined by the Sharia ( Surat al-Nisaa Q4 v. 11-14)
PERMISSIBILITY OF DISTRIBUTING 1/3 OF A MUSLIM’S PROPERTY IN HIS WILL
A Muslim is permitted to write a will concerning one third or less of his properties. The Prophet (peace and blessings of Allaah be upon him) is reported as saying:
“Allah was being generous to you when He allowed you to give one-third of your wealth (in charity) when you die, to increase your good deeds” (Narrated by Ibn Maajah, al-Wasaayaa, 2700
This does not apply to any of the heirs, because the Prophet (peace and blessings of Allaah be upon him) is reported as saying: “There is no will for the heirs.” (narrated by al-Tirmidhi, al-Wasaayaa, 2047.
MODE OF WILL WRITING IN ISLAM
The Islamic will includes both bequests and legacies, instructions and admonishments, and assignments of rights. No specific wording is necessary for making a will under Islamic law. In Islamic law the will, (wasiyya) can be oral or written, and the intention of the testator must be clear that the wasiyya is to be executed after his death. Any expression which signifies the intention of the testator is sufficient for the purpose of constituting a bequest.
WILL IS REVOCABLE IN ISLAM BY THE TESTATOR
The will comes into effect when the person dies. It is permissible for the person who writes the will to revoke it or cancel it or revoke part of it.
REQUIRED WITNESS (S)
There should be two witnesses to the declaration of the wasiyya. A written wasiyya where there are no witnesses to an oral declaration is valid if it is written in the known handwriting/signature of the testator.
INHERITANCE IN ISLAM.
The issue of distribution of the deceased’s estate according to the prescription of the qur’an and Sunnah is obligatory in Islam. To act contrary to what Allah instructs in the Quran as regard law of inheritance is seen as disobedience to Allah, the act of which attracts punishment from Allah. Allah ends the aayah regarding law of inheritance with the following Verses:
Q4 v.13. These are the limits (set by) Allaah (or ordainments as regards laws of inheritance), and whosoever obeys Allaah and His Messenger (Muhammad) will be admitted to Gardens under which rivers flow (in Paradise), to abide therein, and that will be the great success.
Q4 v.14 And whosoever disobeys Allaah and His Messenger (Muhammad), and transgresses His limits, He will cast him into the Fire, to abide therein; and he shall have a disgraceful torment” (al-Nisaa’ 4:13-14)
In conclusion the issue of distribution of estate of a deceased according to Islamic law is handled by Islamic scholars who are experts in the field.