Section Three
The Will
(Al-Wasiyyah)
The wasiyyah, in the scholars' terminology, is: giving the ownership of an asset or benefit voluntarily, or giving control of disposal of the asset, after death. The Holy Qur’an encouraged it as in the verse: ((It is prescribed that he should make a proper bequest (will)…)) 2:180; it was narrated that the Prophet (sawa) said: ‘For one who does not leave a proper will when dying, this (points to/shows) shortcomings in his chivalry and reason.’
(A) Types of wills
932. There are two types of wills: ownership (temlikiyyah) and entrustment (‘ahdiyyah). The first is when the person making the will (the testator) wants to transfer ownership of some of his assets, or some of the rights, to others (the beneficiaries), whether an individual or party; the will may relate to the asset itself, such as to give it to the poor for example, or relate to a person who is to give it to the poor after his death. The second type is entrusting a specific person to carry out certain things that the person making the will wants to be done after his death, in the following matters:
1- Making him guardian to his minor children.
2- Paying off other peoples’ rights over him, such as trusts or debts, or religion-specified money obligations, such as khums and zakāt and the like.
3- Arranging for someone to perform any acts of worship (which he could not perform).
4- Spending some of his assets for good or charitable causes in a specific or unspecific manner; however, it is not an entrusting will if it is a question of ordering the payment of some of his assets to the poor or to a particular person, since this is a kind of ownership will as described earlier.
However, if someone includes in their entrusting will deeds in other areas that are regarded as interfering in the affairs of others, these are not valid or binding on the wasi (executor of the will), such as if the testator asks his friend to pray (in congregation) with a certain scholar or to marry off his daughter to a particular person and the like.
933. Making a will is recommended in the Sharī‘ah, but if some of an entrusting will relates to obligatory matters, such as paying off debt or performing worship duties as qada’, it becomes obligatory for the person not only to mention them in the will to relieve him of his responsibility, but also to do his utmost to make sure of relieving his responsibility; hence if this depends on making the will it becomes obligatory, otherwise not.
(B) The form (sighah) of the will
934. It is acceptable for the testator to register a will using any form of wording, act, sign or writing that identifies it, using his hand or signed by him, provided that it shows that what he wants to follow after his death. Wills, whether one of entrustment or ownership, do not require the acceptance of the beneficiary, rather he will have ownership as a result of an ownership will even if he rejects the will both during and after the life of the person making the will. With an entrustment will, however, the matter is different in three situations:
First: If the executor rejects the will and renounces it – even if before it is announced by the person making it – and the latter is informed about the rejection in sufficient time to appoint another executor, in this case the first appointed executor will not be bound by anything in respect of the person making the will.
Second: If the rejection occurs after the death of the person making the will or in his absence and he is not informed about the rejection, or with insufficient time to appoint another one, in this case his rejection has no effect, including if the testator appointed him as guardian to the minors among his children.
Third: If there are things that are required in the will to be carried out, such as prayers to be offered as qada’ by the entrusted person personally or pilgrimage also, in this case if he accepts them, they become binding, but he is free to reject such a will even after accepting it, and thus to release himself from it, if his rejection reaches the person who made the will, otherwise, it remains binding upon him.
In the cases of wills of entrustment, if the person entrusted with the will rejects it but the person making the will insists on him carrying out his wishes and does not accept his rejection, the will stays valid but is not binding on the executor, who may choose to execute it, or not, in which case it is regarded as a will without an appointed executor, and is therefore handed to the Islamic authority.
935. A will is something allowed for the person making it, so if he entrusts someone with something, he is allowed to retract from it and change it as long as he is alive and meeting all the conditions. There is no particular wording for the retraction, but it is sufficient that he makes a will that is different to the earlier one.
(C) Conditions for the person making the will (al-Mūsi, the testator)
936. So that the will goes through, the testator must meet the following conditions:
1- Having reached the age of ten or more for males: so the will of a child will be valid only if he has reached ten years and his will contains charitable and good matters, or things that are acceptable to sane people, even if they are directed towards others who are not part of his kinship. With females, however, since they – as a precaution – reach the Islamic legal age at nine, caution must be practised in accepting their will at this age, with the stipulation of reasonable conduct (roshd).
2- Sanity: so a will by an insane or drunk person, or one who lost conscious thought during the time when he lost his sanity, is not valid. However, if he registered his will then lost his sanity, his will stays valid.
3- Reasonable conduct, which means reasonable and acceptable behaviour regarding his affairs in a manner that is the norm for sane people.
4- Free will: so a will made by someone who is forced into it is not valid even if he accepts it later, in which case a new will must be made as an obligatory precaution.
5- He must not have killed himself, which is specific to any individual who made a will after carrying out an act that would lead to his death and that his will concerns his assets; however, if he made the will before that, it is valid even if he had decided to commit suicide when making the will; also, his will regarding matters other than his assets is valid absolutely.
937. There is no difference between the person making the will being healthy when making the will or ill; a will made by someone who the ill is valid, even if he is in the last stage of illness before death.
(D) The persons towards whom the will is directed
938. Ownership wills are valid to anyone, individuals or parties/organisations to whom the person making the will wants to give, whether amongst the family heirs or others, young and old, sane and insane, Muslims and non-Muslims, individuals or groups. Generally, a will of entrustment is valid (to be entrusted) provided that it is not directed to the completely insane or the very young.
939. An ownership will, and the entrustment will as well, is valid if directed towards whoever is present in the life of the person making the will, whether this be his grandchildren or others; in fact, it is more probable that both types of wills are valid if directed towards those who will be born after the life of the person making the will. However, no will is valid if directed towards beneficiaries that are dead.
940. If the testator puts something in his will to someone who is yet to be born, but he is never born, or to someone for whom he made certain things conditional but these conditions were not met, these stipulations become void and what he designates for such persons is to be turned over to the heirs of the person who made the will to be divided amongst them according to the ratio of their shares.
941. If the testator allocated an asset or money in his will to a group of people, male, female or mixed, the asset/money is to be divided amongst them equally.
942. If a person in the will dies before the death of the person who made the will and before the asset is transferred to him, the will does not become void, but the asset is to be transferred to the deceased’s heirs immediately after the death of the testator, in a way that seems as if the latter put them, not their deceased, in the will; and as a consequence the rulings regarding the assets of their deceased do not apply to the transferred asset, so it is not included in the third (see 943 below), nor are his debts to be paid from it, and his wife is to be paid from it even if it is a property (house, land, etc); but it must be divided among his heirs in the same way as inheritance money.
(E) The amount of things given in the will
943. It is conditional that the amount given in the will, whether as ownership or entrustment, does not exceed one third (1/3) of the deceased's estate, after the exclusion of what must be taken out from the estate, which are: debts he owed to people, religion-specified money obligations (hoqūq shar‘iyyah) that are due from his assets, the khums and zakāt in particular, pilgrimage that was obligatory (on him) depending on his ability (to perform it), in addition to the expenses of his coffin, burial etc.
944. If the will is more than the third, the excess is not carried out unless if the heirs approve of giving the excess from their shares, and if only some of them allow that and the rest reject it, it is carried out using only the shares of those who approved.
However, the approval of the minors amongst the heirs is not valid, neither by themselves nor through their guardian. In this case, either the non-minors accept to take on the whole of the excess, or its execution must wait until the minors become qualified by bolūgh, sanity or roshd.
945. If a person who has no heirs except the Islamic authority has made his will to give all his assets to the poor and stranded [travellers, or to charitable, good or pious causes, his will must be executed, but it is good to observe the precaution of getting the permission of the Islamic authority (al-hākim ash-Shar’i).
946. If a person gives another an amount of money and asks him – in his will – to spend it on certain things, it seems that he must make sure that is equal to no more than the third before spending it – it is not allowed to hasten to spend it before that, even if he thinks it probable that he will have the heirs’ permission to execute this request, or if he has an Islamically legal (shar’i) demand that calls for spending it from the estate.
947. If the person asks in his will to exclude some of his heirs from their share in the estate for noble or non-noble reasons, his will must not be executed unless those excluded approve of fulfilling this wish, in which case it is executed by excluding them. However, if the deceased has not registered a will regarding the third of his assets, but left it as general inheritance, in this case the will of exclusion must be executed by the amount which the excluded individual(s) was going to inherit from the third of the deceased had he not excluded him – all this after calculating and subtracting the obligatory amounts.
(F) The executor (al-Wasi)
948. The wasi is the person or persons to whom the testator entrusts the execution of his will. An executor must have reached the Islamic legal age, if the things which he is entrusted to execute so demand, so the actions of a child will not be accepted if he was made an independent executor of financial matters. Also, sanity is also conditional, so it is not valid to make an insane person, during his insanity, an executor. But Islam is not a condition; that said, it is better, but if entrusting the non-Muslim leads to religious or worldly blight, in this case the will is not valid.
949. Righteousness (‘adālah) is not conditional for the executor, but it is sufficient that he is trustworthy to do the important things that the person making the will has made him responsible for. However, if a righteous (‘ādil) person is made executor then he becomes corrupt, any will directed to him becomes void if it is known that the person who made the will had made his righteousness a condition, otherwise it is not invalidated. The same applies if he makes a truthful person executor then he lies, or a knowledgeable person who he then becomes ignorant.
950. If the executor fails to execute the will due to his old age, illness, travel or other reasons that prevent him from following up and supervising the matters of the will, in this case the (Islamic) authority should ask someone to join him and meet the demand.
951. If the executor betrays the trust in him, his executor's position becomes invalidated if it was conditional upon his trustworthiness and the execution of the will is handed over to an (Islamic) authority who will either appoint another executor, or take on the matter himself. But if it was not conditional upon his trustworthiness then it would not be invalidated by betrayal, but the (Islamic) authority may ask another trustworthy person to join him and prevent him from betray his trust, but if this is not possible, he will be sacked and someone else appointed instead or the (Islamic) authority will take on the matter himself.
952. If the executor dies before the execution of the will, wholly or partially, the (Islamic) authority takes over or appoints someone else in his place; the same if he died during the lifetime of the person who made the will but the latter was aware of this, or if he came to know about it but failed to appoint someone else and there is nothing that implies that he had rejected any part of the will itself.
953. The (Islamic) authority takes over the responsibility of the will in each case where the entrustment of the will is conditional upon something and then this thing does not take place.