The Importance of an Islamic Will
What is an Islamic Will?
Islam has strongly emphasized that each
individual make a Will in his lifetime and have witnesses to it.
"It is prescribed for you, when death
approaches one of you, if he leaves behind wealth, that he bequeaths unto
parents and near relatives in goodness; (that is) a duty on those who safeguard
themselves with full awareness of divine laws." 2:180
قال تعالى : ( كتب عليكم إذا حضر أحدكم الموت
إن ترك خيراً الوصية للوالدين والأقربين بالمعروف حقا على المتقين ) البقرة /180
The Prophet (SAW) has also strongly urged
Muslims to do so. It is so much important, that when going to bed to sleep, it
is recommended that the Will be kept under the pillow.
In these times, the Will has become
extremely important. It avoids costs and complications for the heirs. It
provides for the proper distribution of assets, properties and possessions,
instruction for payment of debts, selection of an executor and appointment of a
guardian for minor. Without a will, the state would step-in, distributing the
wealth according to the state laws and the court would select an administrator
for the estate and a guardian for children.
Not writing The Last Will and Testament,
then, amounts to giving up your rights regarding your inheritance.
Why is an Islamic Will
(Wasiyat) important?
The importance of the Islamic Will 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 Islamic Jurists also have a maxim or
principle stating:“If the obligatory (waajib) deed that can only be fulfilled by
a non obligatory deed that makes the non-obligatory deed obligatory (waajib).”
This means that it is not generally
obligatory for a Muslim to make a Will. In non-Islamic countries, the Islamic
Laws of Inheritance are not recognized and thus making it obligatory (wajib) for
an every Muslim residing in non-islamic country to have an Islamic Will. Imagine
facing Allah having enjoyed all the luxuries this life has to offer but never
having taken consideration for one’s own transition into the next life.
This is a grievous situation for a Muslim
because one would have lived one’s life praying, fasting, giving charity and
performing other righteous deeds only to undo such good works at death. This is
especially important because the accomplishment of deeds is determined by their
conclusions.
We have chosen to live in a country that
does not recognize the Islamic Laws of Inheritance. It is therefore a religious
and moral duty upon every Muslim to make sure they prepare an ISLAMIC WILL and
take steps to complete their life in a way pleasing to Allah.
In Surah al-Nisa’ after mentioning the
rules of inheritance Allah says, “… an obligation (faridah) from Allah and Allah
knows every thing and is most Wise. These are the limits of Allah and he who
obeys Allah and His Messenger, He will enter him in heavens beneath which rivers
flow, abiding there forever and that are a great success. But he who disobeys
Allah and His Messenger and transgresses His limits, He will enter him in hell
to live there for ever and for him is a humiliating punishment. “(4:11-14).
.
فَرِيضَةً
مِّنَ اللَّهِ إِنَّ اللَّهَ كَانَ عَلِيماً حَكِيماً
تِلْكَ
حُدُودُ اللَّهِ وَمَن يُطِعِ اللَّهَ وَرَسُولَهُ يُدْخِلْهُ جَنَّـتٍ تَجْرِى مِن
تَحْتِهَا الاٌّنْهَـرُ خَـلِدِينَ فِيهَا وَذلِكَ الْفَوْزُ الْعَظِيمُ - وَمَن
يَعْصِ اللَّهَ وَرَسُولَهُ وَيَتَعَدَّ حُدُودَهُ يُدْخِلْهُ نَاراً خَـلِداً
فِيهَا وَلَهُ عَذَابٌ مُّهِينٌ
The Islamic Wills
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: payment of funeral expenses, payment of
his/her debts (to Allah and to people) and execution of his /her will and
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 Will (Al-wasiyya)
The Islamic will includes 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.
والدليل على مشروعيتها الكتاب والسنة والإجماع ،
قال تعالى : ( كتب عليكم إذا حضر أحدكم الموت إن ترك خيراً الوصية للوالدين
والأقربين بالمعروف حقا على المتقين ) البقرة /180 ، وقوله تعالى : ( من بعد وصية
يوصى بها أو دين ) النساء /11 .
Allah, The Exalted, says “Prescribed for
you when death approaches (any) one of you if he leaves wealth (is that he
should make) a bequest for the parents and near relatives according to what is
acceptable-a duty upon the righteous.” {Qur’an: Al Baqarah: 180}Allah, The
Exalted, also says, “…After any bequest he (may have) made or debt…” {Qur’an:
An-Nisa: 11}.
وقال
النبي صلى الله عليه وسلم : ( أن الله تصدق عليكم بِثُلُثِ أموالكم عند وفاتكم
زيادة في أعمالكم ) رواه ابن ماجة (الوصايا/ 2700) وحسنه الألباني في صحيح سنن ابن
ماجة
Muhammad, the Prophet, may Peace and
Blessings be upon Him said, “Allah made a charity upon you at death by (allowing
you to give) one-third of your wealth (as a charity) to increase your (good)
deeds.”
وتجوز بحدود
ثلث المال فأقل ، وبعض العلماء يَسْتَحِبّ أن لا تَبْلُغَ الثُّلث ، ولا تَصِحّ
الوصية لأحد من الورثة ، لقول النبي صلى الله عليه وسلم : ( لا وَصِيّة لوارث )
رواه الترمذي ( الوصايا/ 2047) وصححه الألباني في صحيح سنن الترمذي برقم 1722 ،
وإذا قصد الوصي المُضَارّة بالوارث ، ومضايقتِه فإن ذلك يَحْرُم عليه لقول الله
تعالى : ( غير مُضَارّ ) النساء /12 ، ويبدأ اعتبار الوصية بحال الموت ، ويجوز
للموصى الرجوع فيها ونقضها أو الرجوع في بعضها ، وتنفيذ الوصية أمر مهم فقد أكد
عليها الله عز وجل وقدمها في الذِّكر على غيرها وقد جاء الوعيد الشديد لمن بَدّلها
، أما تَوْزِيع ممتلكات الشَّخص ، فإنه لا يملك الحق في توزيعها بعد وفاته لأن حصة
كل وارث قد بينها الله عز وجل وبين من يَرِثْ ومن لا يَرِث ،
It is permitted to write a will concerning
one third or less. Some of the scholars said it is preferable for it to be less
than one-third, and the will does not apply to any of the heirs, because the
Prophet (peace and blessings of Allaah be upon him) said: “There is no will for
the heirs.” (Narrated by al-Tirmidhi, al-Wasaayaa, classed as saheeh by
al-Albaani in Saheeh Sunan al-Tirmidhi). If the will is intended to harm the
heirs or make things difficult for them, then that is haraam, because Allaah
says (interpretation of the meaning):
“So that no loss is caused (to
anyone)”[al-Nisaa’ 4:12]
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. Carrying out the will is an important matter
which was confirmed by Allaah and mentioned before other things, and there is a
stern warning issued to those who change it.
The Prophet (peace and blessings of Allaah
be upon him) said: “Allaah 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,
classed as hasan by al-Albaani in Saheeh Sunan Ibn Maajah.
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.
Malik related to me from Nafi‘ from
‘Abdullah ibn ‘Umar that the Messenger of Allah, may Allah bless him and grant
him peace, said: “It is the duty of a Muslim who has anything to bequeath not to
let two nights pass without writing a Will about it.” (Al-Muwatta’ of Imam
Malik: 37.1.1)
The beauty of the Shari‘a is its
simplicity and certainty. When you are writing your Islamic Will, you do not
have to try and figure out which of your relatives will still be alive when you
die in order to make sure that they will receive something. Whoever administers
your estate will ascertain which of your relatives are still alive and what
fixed shares they are automatically entitled to inherit by applying the criteria
of the Shari‘a. If, however, you wish to make a bequest to someone who is
not a relative, or to a charity or to a project, then you must specifically
record this in your Will, remembering that only up to a third of your estate can
be bequeathed in this way. The remaining two thirds must go to your relatives in
the fixed shares prescribed by Allah. If you do not make any bequest of up to a
third of your estate, then all of your estate will be divided between your
surviving relatives.
In a Muslim community, these principles of
the Shari‘a are applied automatically as a matter of common sense and
best practice, but in many countries today including the United Kingdom, if you
do not leave an Islamic Will which states that you wish these principles to be
applied – and which is valid in the eyes of the law of the land – then different
criteria will be applied.