VII. AL-WASIYYAH – THE ISLAMIC WILL
Narrated Abdullah bin Umar: Allah's Apostle 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." [Sahih al-Bukhari]55 In Shariah, the term Al-Wasiyyah ( وف خُ ) is used for Islamic Will, and it is very important to write one‟s will as recommended by the Prophet (pbuh). Al-Wasi ( وفً ) means executor. Al-Musi ( المىفً ) is Testator the one who made Wasiyyah. Al-Musa Lahu (المىف ) refers to the person who is the beneficiary of the Wassiyah.
What can be in bequeath/will
Shariah has placed two restrictions on Testator ( الموفٍ , one who make Will وف خُ ):
1. Firstly, to whom he can bequeath his wealth/assets - Al-Musa Lahu (المىف )
2. Secondly, the amount that he can bequeath (which is maximum of 1/3 of overall estate)
Maximum Limit of 1/3rd
1. The limit of 1/3 is based on following Hadith:
Narrated Sad bin Abu Waqqas: “The Prophet came visiting me while I was (sick) in Mecca, ('Amir the sub-narrator said, and he disliked to die in the land, whence he had already migrated). He (i.e. the Prophet) said, "May Allah bestow His Mercy on Ibn Afra (Sad bin Khaula)." I said, "O Allah's Apostle! May I will all my property (in charity)?" He said, "No." I said, "Then may I will half of it?" He said, "No". I said, "One third?" He said: "Yes, one third, yet even one third is too much. It is better for you to leave your inheritors wealthy than to leave them poor begging others, and whatever you spend for Allah's sake will be considered as a charitable deed even the handful of food you put in your wife's mouth. Allah may lengthen your age so that some people may benefit by you, and some others be harmed by you." At that time Sad had only one daughter.” [Sahih al-Bukhari]56
2. If the legal heirs of the Testator ( الموفٍ ) agrees then it is allowed to bequest more than 1/3. However, Maliki fiqh states 1/3 as absolute which cannot be overridden.
Rules for Al-Wasiyyah (وف خُ )
1. No specific wording is needed for Wasiyyah.
2. Wasiyyah does not necessarily need to be written, it can be oral, as far as there are witnesses.
3. Two witnesses are required to declare the Wasiyyah.
4. Wassiyah is paid after the funeral / burial expenses and payment of debts.
5. Wassiyah may be general or specific. E.g. 1/3 of my estate or $10,000 etc)
6. While Will complies with Shariah, it should also comply with law of the land (if its non-Muslim land) so that Will can be executed without unnecessary legal hustles.
7. In non-Muslim land, its preferred to have alternative names for Al-Musa Lahu ( المىف ) / Beneficiaries, in case no surviving heir is left at the time of deceased‟s death.
Rules for Al-Musi (المىفً )
1. Al-Musi ( المىفً ) must be an adult sane Muslim and he must have capability to make a will and he should not be under any compulsion.
2. Adult is defined in Shariah as person with clear evidence of puberty.
3. Al-Musi (المىفً ) must own what he bequests.
4. Al-Musi (المىفً ) can revoke his own will with a subsequent will.
Rules for Al-Musa Lahu (المىف ) – Beneficiary of the will
1. Al-Musa Lahu ( المىف ) or beneficiary of the will/bequeath cannot be an existing heir. This is based on following hadith:
Narrated Abu Hurairah: Allah‟s Prophet (pbuh) said: “Allah has appointed for everyone who has a right what is due to him, and no bequest must be made to an heir” [Sunnan Abu Dawood]57
2. A bequeath in favor of Christian or Jewish wife is valid, as they are not sharer in inheritance but can be given bequeath.
3. Killer is generally excluded from Wassiyyah. Hanafi fiqh said if heirs give their consent, then it is allowed. Maliki/Shafii accepted it as Hibba (gift). Hanbali fiqh said if deceased allowed the will after fatal injury and before his death, then it is allowed (possibility if it‟s accidental injury).
4. Al-Musa Lahu ( المىف ) or beneficiary must accept or reject the will after the Testator ( الموفٍ )‟s death. If he doesn‟t accept his share and dies, then share is added back into the estate (of deceased) as per hanafi fiqh
5. Al-Musa Lahu (المىف ) or beneficiary becomes owner of the share as follows:
a. Hanafi/Shafii: at the time of death of the testator
b. Malaki/Hanbali: on accepting the bequest
Rules for Al-Wasi Al-Mukhtar ( وف المخزبس ) – Executor of Will
1. The Executor ( وفً ) must be trustworthy and truthful person. He is the appointed person by the Testator (المىفً ) to execute his will.
2. Generally, in Islamic estates this will be the Qadi ( لبمٍ ), but Muslims living in west must appoint a trustworthy executor.