__________________________________________________ _
Will (Wassiyat)
Succession Act 1925


SYNOPSIS

1. Definition
 Baillie
 Fatawa Alamgiri
2. Meaning
3. Essentials
4. Parties to will
5. Subject of Will
6. Who Can make Will
7. Qualification of Testator
8. Person who can not make Will
9. Persons in favour Will can be made
10. Conditions of a valid Will
11. Form of Will
12. Attestation
13. Cases where will is not valid
14. Essentials for execution of Will
15. Nature of appointment of Testator
16. Limitation
17. Revocation
18. Conclusion

1. DEFINITION
 Baillie:
A will is a conferment of rights property in a specific thing or a profit or an advantage or in gravity to take effect on the death of the testator.
 Fatawa Alamgiri:
Will is a legal declaration of the intention of a testator with the respect to his property which desires to be carried into effect after his death.
2. MEANING
The term Will is from the Arabic word Wassiyyat which means endowment with property of any thing after death.
3. ESSENTIALS
Following are the essentials to a valid will under Islamic Law:
i Declaration by the testator.
ii Testator must be competent to declare.
iii The subject of will must be valid.
iv It must be within the limit imposed on the testator.
v The legatee must be competent to take the property.
vi Offer by testator.
vii Acceptance by legatee.
4. PARTIES TO A WILL
 Legacy.
It is the property which is bequeathed through will.
 Testator.
A person who makes will is called testator.
 Legatee
A person in whose favor will is made is called legatee.
5. SUBJECT OF WILL
The subjects of a will are as under:
i The property must be transferred to legatee.
ii The property must be in existence which is to be bequeathed.
6. FORM OF A WILL
 Written or Oral
Islam Law does not prescribe any particular form for the making of will. The will of a Muslim needs not be in writing, an oral is valid. If the will is in writing, it needs not be signed and if signed need not be attested.
 Fatawa Alamgiri
A sick man makes a bequest, and being unable to speak from weakness gives a nod with his head, and it is known that he comprehends what he is about- if his meaning be understood, and he dies without regaining the power of speech, the bequest is lawful.
7. WHO CAN MAKE A WILL
Every Muslim of sound mind may dispose of property by will.
8. QUALIFICATION OF TESTATOR
i He/She must have sound mind.
ii He/She must have attained majority.
(Under Islamic Law, majority is attained at puberty, and the presumption is that a Muslim attains majority on the completion on the fifteenth year.)
iii He/She possessed with the ownership of property.
9. PERSONS WHO CAN NOT MAKE WILL:
Following persons can not make will:
i Who is Minor.
ii Who is Lunatic.
iii Who has Unsound mind.
10. PERSONS IN WHOSE FAVOR WILL CAN BE MADE.
A will can be lawfully made in favor of the following:
i An individual
ii An institution
iii A non- Muslim
iv A minor
v An insane
11. CONDITIONS OF A VALID WILL
Following are the conditions of a valid will:
ii There should an intention to give away the property.
iii It requires disposition to take effect after the death of the testator.
iv It should not affect the legal shares of the heirs.
v It should not be more than 1/3 of the property.
12. ATTESTATION
A Will should be attested by two or more witnesses.
13. CASES WHERE WILL IS NOT VALID
In following cases will is not valid:
i If it is in favour of a legal heir.
ii Contigent Will is not valid.
iii Will to unborn child
(Exception: A Will may be made to a child in the womb provided it is born with in six months from the date of the will.)
i A will in future
ii A will to make a bequest to benefit an object opposed to Islam as a religion is invalid.
iii A will to a person who causes the death of the testator
iv In Shi’ite Law, a will made by a person after wounding himself or taking poison, with a view to committing suicide, is invalid. But if he makes a will and then commits suicide, it is valid.
14. ESSENTIAL CONDITIONS FOR EXECUTION OF WILL
For execution of valid will following are the conditions:
i Payment of the funeral expenses out of the property of the deceased.
ii Payment of any debt out of the property of the deceased.
15. NATURE OF APPOINTMENT OF TESTATOR
Appointment of testator may be for.
i General purpose
ii Special purpose
16. LIMITATIONS.
a. AS TO PERSONS:
 Legal Heir
A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator.
 Manslayer
- Hanafi Law
A person who kills another can not take a legacy from the deceased is excluded whether the homicide is intentional or not.
- Ithna’ Ashari Law
According to it, only intentional homicide leads to exclusion.
b. AS TO PROPERTY
 The Bequeathable Third
A Muslim can not bequeath more than one third of his estate which is left after the payment of his funeral expenses and debts.
Exception:
A Muslim can bequeath more one third of his estate with the consent of the legal heirs.
- Hanafi Law
According to Hanafi Law, if bequests exceed the bequeath able third, they do not take effect without the consent of the legal heirs. Such consent must be obtained after the death of the testator.
- Ithna’ Ashari Law
According to it, the consent of the legal heirs may be obtained before or after the death of the testator.

 Abatement of Legacies
- Hanafi Law.
Where the bequests taken in the aggregate exceed the bequeathable third and the heirs don not consent, the bequests abate ratably.
- Ithna’ Ashari Law
In case of several bequests, the first time in prevails, until the bequeathable third is exhausted, priority is determined by the order in which they are mentioned.
17. REVOCATION OF WILL
A will is revocable. It ban be revoked by the testator at any time before his death.
Mode of Revocation
 Express
Testator may revoke the will in express terms either orally or in writing.
 Implied
Implied is that revocations where the testator does an acts from which revocation may be inferred. The bequest of a house is revoked impliedly, if after making the will, the testator sells it or makes a gift of it to someone else.
18. CONCLUSION:
To conclude, a will is the disposition of property which is to take effect at the time of the person making it. It operates from the time before his death.

This article is a very brief overview of the traditional Sunni Islamic law pertaining to the Islamic will. The aim of this article is to arouse awareness amongst Muslims particularly those living in the West regarding this important aspect of Islamic law. It should be stressed that when writing a will one should consult an Islamic scholar/legal expert to ensure that the will complies with Islamic law as well as the law of the country of residence.

When a Muslim dies there are four duties which need to be performed. These are:

1. payment of funeral expenses
2. payment of his/her debts
3. execution his/her will
4. distribution of the remaining estate amongst the heirs according to Sharia

The Islamic will is called al-wasiyya. a will is a transaction which comes into operation after the testator’s death. The will is executed after payment of funeral expenses and any outstanding debts. 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 legatee (al-musa lahu). Technically speaking the term "testatee" is perhaps a more accurate translation of al-musa lahu.



The importance of the Islamic will:

The importance of the Islamic will (wasiyya) is clear from the following two hadith:

"It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will about it." (Sahih al-Bukhari)

"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." (Ahmad and Ibn Majah)

the will gives the testator an opportunity to help someone (e.g. a relative need such as an orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will can be used to clarify the nature of joint accounts, those living in commensality, appointment of guardian for one’s children and so on. In countries where the intestate succession law is different from Islamic law it becomes absolutely necessary to write a will.



The Will (Al-wasiyya):

The Islamic will includes both bequests and legacies, instructions and admonishments, and assignments of rights.

no specific wording is necessary for making a will. 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.

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 written in the known handwriting/signature of the testator according to Maliki and Hanbali fiqh.

the wasiyya is executed after payment of debts and funeral expenses. the majority view is that debts to Allah (SWT) such as zakh, obligatory expiation etc. should be paid whether mentioned in the will or not. However, there is difference of opinion on this matter amongst the Muslim jurists.



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. The Maliki and Hanbali fiqh also consider the will of a discerning (tamyiz) child as valid.

Under English Law you must be at least 18 years of age to make a valid will (similarly in most of the United States of America) unless you are a military personnel in which case you may make a valid will at the age of 17.

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.

the testator has the right to revoke his will by a subsequent will, actually or by implication.

In traditional Sunni Islamic law the power of the testator is limited in two ways:

1. firstly, he cannot bequest more than 1/3 of his net estate unless the other heirs consent to the bequest or there are no legal heirs at all or the only legal heir is the spouse who gets his/her legal share and the residue can be bequeathed.

Narrated Sa‘d ibn Abi Waqqas (RA): "I was stricken by an ailment that led me to the verge of death. The Prophet came to pay me a visit. I said, "O Allah's Apostle! I have much property and no heir except my single daughter. Shall I give two-thirds of my property in charity?" He said, "No." I said, "Half of it?" He said, "No." I said, "One-third of it?" He said, "You may do so, though one-third is also too much, for it is better for you to leave your offspring wealthy than to leave them poor, asking others for help..." (Sahih al-Bukhari, Sahah Muslim, Muwatta, Tirmidhi, Abu Dawud and Ibn Majah.)


2. secondly, the testator cannot make a bequest in favour of a legal heir under traditional Sunni Muslim law. However, some Islamic countries do allow a bequest in favour of a legal heir providing the bequest does not exceed the bequeathable one-third.

Legal heir in this context is one who is a legal heir at the time of death of the testator.

Narrated Abu Hurayrah (RA): Allah’s Prophet (SAWS) said, "Allah has appointed for everyone who has a right what is due to him, and no bequest must be made to an heir. (Abu Dawud). Similar hadith narrated by Abu Umamah (RA) and reported by Ibn Majah, Ahmad and others.



The Legatee (Al-musa lahu):

generally speaking, for a bequest to be valid, a legatee must be in existence at the time of death of the testator except in the case of a general and continuing legatee such as the poor, orphans etc.

the legatee must be capable of owning the bequest. any bequest made in favour of any legal heir already entitled to a share is invalid under traditional Sunni Muslim law unless consented to by other legal heirs. an acknowledgement of debt in favour of a legal heir is valid.

acceptance or rejection of a bequest by the legatee is only relevant after the death of the testator and not before. generally speaking once a legatee has accepted or rejected a bequest he cannot change his mind subsequently.

if the legatee dies without accepting or rejecting the bequest, the bequest becomes part of the legatee’s estate according to the Hanafi fiqh because non-rejection is regarded as acceptance. According to the other three main Sunni madhahib, the right to accept or reject the bequest passes onto the heirs of the legatee.

there is difference of opinion as to the time at which ownership of a bequest is transferred from the testator (or his heirs) to the legatee. According to the Hanafi and Shafii fiqh the transfer of ownership is at the time of death of the testator, according to the Maliki and Hanbali fiqh the transfer of ownership is at the time of accepting the bequest.

all the Sunni madhahib agree that if the legatee dies before the testator, the bequest is invalid since a bequest can only be accepted after the death of the testator.

if there is uncertainty as to whether or not the legatee survived the testator, such as a missing legatee, the bequest is invalid because the legatee must be alive at the time of death of the testator for the will to be valid.

if the testator and legatee die together, such as in an air crash, and it is not certain who died first, the bequest is invalid according to the Hanafi, Maliki and Shafii fiqh. But according to the Hanbali fiqh, the bequest devolves upon the legatee’s heirs who may accept or reject it.



Executor of the will (Al-wasi Al- mukhtar):

the executor (al-wasi) 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 authority of the executor should be specified. Hanafi and Maliki fiqh state that the executor should be trustworthy and truthful; the Shafii fiqh state that the executor must be just. the Hanafi fiqh considers the appointment of a non-Muslim executor to be valid. the testator may appoint more than one executor, male or female. the testator should state if each executor can act independently of the other executor(s).

if one starts acting as an executor, one will be regarded as having accepted the appointment, both in Islamic and in English law.



written by:
Dr. Abid Hussain(islam 101)...

__________________
Having once decided to achieve a certain task, achieve it at all costs of tedium and distaste. The gain in self-confidence of having accomplished a tiresome labor is immense.