بِسْمِ اللهِ الرَّحْمنِ الرَّحِيْم

اَلْحَمْدُ لِلّهِ رَبِّ الْعَالَمِيْن،وَالصَّلاۃ وَالسَّلامُ عَلَی النَّبِیِّ الْکَرِيم وَعَلیٰ آله وَاَصْحَابه اَجْمَعِيْن۔

Laws Pertaining to Wasiyat in Islam

Definition: Wasiyat (will) means a will that comes into effect after death [of the Testator]. For example, if a person at the verge of death expresses his wish that a certain amount of his wealth or a certain part of his property be given to a certain person, religious institution, waiting lounge or orphanage after his death it is called a Wasiyat (will) on part of him. A will should be made in written form in the presence of two witnesses so that there arises no misunderstanding later among the heirs. Islam allows making a will so that one may help his needy relatives who would have no shares in his property such as an orphan grandson or granddaughter, widow of his deceased son or a poor cousin. Though one is not obliged to make a will before death yet sometimes it is highly recommended to make one. And when a will is made, the heirs will be obliged to execute it in one-third of the net estate. However, if the will covers more than one-third, the heirs will have a choice not to fulfil it beyond what exceeds the bequeathable part. For instance, if the net assets after funeral expenses and reimbursement of outstanding debt equals 9 lakhs, the bequeathable amount will be 3 lakhs only and then it will depend on the heirs to or not to execute the willbeyond what exceeds one-third of the net estate. It will be a grave sin to make willwith the evil intention ofdepriving all or some of the rightful heirs of their shares in the property. The Messenger of Allah (PBUH) is reported to have said: “If anyone deprives an heir of his inheritance, Allah will deprive him of his inheritance in Paradise on the Day of Resurrection.” (Ibn Majah and Baihaqi) Following one’s death, one’s estate whether in form of cash or property should be distributed in accordance with the prescribed Islamic law of inheritance.

In the early days of Islam when the rulings concerning fixed shares in the estate of a deceased person for his/her heirs were not yet revealed, it was obligatory for every Muslim to bequeath shares for the heirs through a will so as to eliminate any chance of quarrel among the heirs and so to ensure that no one is deprived of his share. But after Allah the Exalted revealed down rulings with regard to inheritance through verses of Surat al-Nisa’, the obligation of making will was thereby abrogated. However, it remained a desirable act even after that with two conditions: (1) A will cannot be made for a person who is already entitled to a prescribed share in the inheritance such as one’s mother, father, wife, husband and children. The Messenger (PBUH) while addressing about one hundred and thirty thousand people during the Farewell Pilgrimage said: “Allah has prescribed share for each heir so no will may be made in favour of an heir.” (Tirmidhi) A report from Abdullah ibn Abbas (may Allah be pleased with them) makes it all the more clear that the law of inheritance abrogated it to make a will for those entitled to fixed shares in the inheritance but the mandate  is still applicable with regard to those relatives who have no prescribed shares in it.(2) A will should be carried into effect in one-third of the net estate unless all the heirs unanimously agree to fulfil it in what exceeds the bequeathable part too. However, it is agreed upon between the Ummah that it is not necessary to bequeath for the kith and kin not entitled to shares in the inheritance. The obligation was abrogated (Tafsir Jassas and Tafsir Qurtubi). However, it is desirable to make a will for one’s loved ones if necessary.

Legitimacy of will in the Quran:

(1) 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. Then whoever alters the bequest after he has heard it - the sin is only upon those who have altered it. Indeed, Allah is Hearing and Knowing. But if one fears from the bequeather [some] error or sin and corrects that which is between them, there is no sin upon him. Indeed, Allah is Forgiving and Merciful.” (2:180-182)

As clarified before, it was obligatory to make a will before detailed instructions concerning inheritance were revealed and then it was abrogated. However, it is still a desirable act in Islam.

(2) In Surat al-Nisa’ where detailed instructions concerning distribution of inheritance among the heirs are provided, it has repeatedly been instructed that the distribution in the stipulated manner should take place only “after [fulfilment of] any bequest he [may have] made or debt.” (4:11-12) The recurring mention of bequest (will) in the chapter clearly establishes the importance and legal validity of making a will.

(3) Allah the Exalted says: “O you who have believed, testimony [should be taken] among you when death approaches one of you at the time of bequest - [that of] two just men from among you or two others from outside if you are traveling through the land and the disaster of death should strike you.” (5:106)

The verse is clear in that one may make a will not only at home but even during a journey if he feels that his time is near as it also instructs to look for two witnesses so as to avoid any disagreement or confusion that might arise.

Legitimacy of will in the Hadiths:

It is related by Abdullah ibn Umar that the Messenger of Allah (PBUH) said: “It is not proper for a Muslim who has anything (like land, goods, money, trust or debt) about which a Will ought to be made that he allows two nights to pass in the condition that its deed has not been prepared and is not with him.” (Bukhari and Muslim) The scholars in light of the Quran and Sunnah have said that it is necessary only for a person to do so who has an outstanding debt or a trust or something payable but he is unable to repay it. As for a person who has no such liability, it is only desirable for him to make a will if he wants.

Legitimacy of will by Ijma’ (scholarly consensus):

As stated by Allama Ibn Qudaha (may Allah have mercy on him) in his Al-Mughni (v 8, p 390), there is a consensus among the scholars in light of the Quran and Sunnah on the legality of making will.

Wisdom behind the mandate of will: An importance reason behind legality of willis that, according to the prescribed rulings of inheritance, the estate is distributed among the heirs in view of their closeness in bloodrelationship and not in accordance to their financial misery. So a person having a closer blood relationship with the deceased is entitled to a larger share than those having a relatively distant blood tie even if the distant one is more in need. Therefore, Islam urges people to take care of the needy relatives who have no fixed shares in inheritance through a bequest in one-third of the estate. For instance, a son who died in the life of his father will be entitled to no shares. Now if he is survived by a son or a daughter, the grandfather of the child should bequeath for them in one-third of his estate. Allah has urged us to do so in Surat al-Nisa’.

Kinds of will:

Obligatory Will: (1) It is obligatory for a person to make a will for reimbursement of debt if any. (2) It is obligatory for a person to make a will [for arrangement of Hajj on behalf of him/her] if Hajj was obligatory for him/her and he/she could not made it. (3) It is obligatory to make a will for paying Fidyah for the missed fasts if any. (4) If a close relative such as a grandson or granddaughter who is not entitled to a fixed share according to the law of inheritance is in dire need, it is highly recommended to bequeath for them though a will. Some scholars regard it obligatory.

Desirable Will:It is permissible for every Muslim to bequeath upto one-third of his estate to any needy person whosoever or any Masjid, Madrasa, waiting lounge or orphanage as an unremitting charity (Sadqa Jariya) allowing himself to be continuously rewarded ever after his death.

Undesirable Will:Sa’d bin Abi Waqas (may Allah be pleased with him) narrated: The Prophet (PBUH) came visiting me while I was (sick) in Makkah, ('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 (Sa’d)." I said, "O Allah's Messenger (PBUH)! 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 to 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 Sa’d had only one daughter. (Bukhari and Tirmidhi) The crux of the matter is it is undesirable to bequeath to others when one’s own children and other relatives need it more.

Sa’d ibn Abi Waqas (may Allah be pleased with him) recovered from his illness after the Prophet prayed for his recovery and thereafter he lived for almost fifty years  scribing his name in the pages of history for his remarkable services for Islam. It was him who built the Kufa city which became a cradle of Islamic knowledge. The Muslims conquered the mighty empire of Persia under his leadership. It was him who crossed the Tigris riding his horse along with a Muslim army to attack the enemy encamping on the other side of the river.

Forbidden Will: It is not allowed to bequeath more than one-third of the net estate to a non-heir and similarly it is forbidden to make a bequest for an heir.  Such a Wasiyat (will)would not take effect if made. It is also forbidden to bequeath to a non-heir entity -whether a person or a religious institution- to deprive the rightful heirs of their shares in the estate. Abu Hurairah (may Allah be pleased with him) narrated that the Messenger of Allah (PBUH) said: "Indeed a man, and a woman, perform deeds in obedience to Allah for sixty years (a lifetime), then death presents itself to them, and they cause such harm in the will that the Fire becomes warranted for them. “Then he recited: “After payment of legacies he (or she) may have bequeathed or debts, without causing harm. This is a Commandment from Allah.” up to His saying: “That is the magnificent success.” (Tirmidhi)

Miscellaneous rulings about Wasiyat (will):

(1) A man in his normal healthy life may spend much or less as he sees on the education of any of his children or for building a house for anyone of them. Similarly, one may distribute his property in his life among his children the way he finds appropriate in view of their financial situation and need. He is not obliged to make an equal distribution among his children. However, he should maintain equality in providing maintenance to them. The rulings pertaining to Wasiyat (will) and inheritance do not apply in general life and situation. Whatever a person gives to his children or relatives in his normal healthy life whether in cash or in kind is considered a gift. In short, if a son is financially weak as compared to his siblings and the father decides to preferably allocate a part of his property for him or give him cash by way of helping, there is nothing wrong in doing so. Similarly, a man during his normal healthy life condition may preferably help his grandson or granddaughter if they are needy.

(2) Amr ibn Harith narrated: “Allah's Messenger (PBUH) did not leave a Dinar or a Dirham or a male or a female slave. He left only his white mule on which he used to ride, and his weapons, and a piece of land which he gave in charity for the needy travellers.” (Bukhari) So the Prophet (PBUH) left no estate hence we see no Wasiyat (will) reported from him.

(3) Reimbursement of debt will be preferred over execution of will. Ali (may Allah be pleased with him) said that the Prophet (PBUH) ordered that debts be paid before [execution of] bequests while you read [in the Quran] the bequest before [the will for paying] debt.

(4) As mentioned before, bequeathing for an heir is not allowed. However, if a person makes a will for an heir and after his death all the heirs unanimously agree to execute the will, it will take effect. Similarly, if he makes a will that exceeds one-third of the net estate, it may be carried into effect by unanimous agreement of all the heirs.

(3) The testator may make changes in his written will. For example, if a person has prepared a will in written form and later he wants to amend it, he is be entitled to do so.

I take this opportunity to remind myself and you all that while making sure fair distribution of inheritance and its utilization and growth by our children after we will be there no more, we should also try to make sure they all will live upto the commandments of Allah and His Messenger (PBUH) after our departure so that they may attain eternal bliss in the hereafter. We should recall what the two noble prophets of Allah Ibrahim and Yaqub (peace be upon them) enjoined upon their sons. The Quran says: “And Abraham instructed his sons [to do the same] and [so did] Jacob, [saying], "O my sons, indeed Allah has chosen for you this religion, so do not die except while you are Muslims." Or were you witnesses when death approached Jacob, when he said to his sons, "What will you worship after me?" They said, "We will worship your God and the God of your fathers, Abraham and Ismael and Isaac - one God. And we are Muslims [in submission] to Him." (2:132-133)

It is also notable that a man is most honest when he sees death approaching him; he only speaks what concerns him the most. The cousin and later son in law of the Messenger of Allah (PBUH) Ali (may Allah be pleased with him) has reported that the last words of the Prophet were: “The prayer, the prayer! And fear Allah with regard to those whom your right hands possess.” (Abu Dawood and Musnad Ahmad) The same has been reported by Umm al-Mu’minin Umm Salamah (may Allah be pleased with her). And he was unable to clearly utter the words when he spoke. (Musnad Ahmad) This incident is more than enough to make us realize the importance of Salah in our life. The last piece of advice imparted by the Messenger of Allah (PBUH) was about being mindful of Salah. Therefore, we should develop a habit of observing Salah punctually till we breathe our last. 

Mohammad Najeeb Qasmi (http://www.najeebqasmi.com/)