بِسۡمِ اللهِ الرَّحۡمٰنِ الرَّحِيۡمِ
This article provides a concise overview of traditional Sunni Islāmic law concerning the Islāmic will. Its purpose is to raise awareness among Muslims, particularly those residing in the West, regarding this significant aspect of Islāmic jurisprudence. It is imperative to emphasize the necessity of consulting an Islāmic scholar and legal expert when drafting a will to ensure compliance with both Islāmic law and the laws of the country of residence.
Upon the death of a Muslim, four obligations must be fulfilled:
- Payment of funeral expenses
- Settlement of debts
- Execution of the will
- Distribution of the remaining estate among the heirs according to Shariah law
The Islāmic will, known as al-waṣiyya, takes effect posthumously and is executed subsequent to settling funeral expenses and outstanding debts. The individual making the will (testator) is referred to as al-mūṣī, while the recipient of the will is commonly termed a legatee (al-mūṣa lahu).
The significance of the Islāmic will is underscored by two hadiths, which emphasize the obligation of leaving behind a will and the repercussions of unjust testamentary acts. The will affords the testator an opportunity to provide for individuals, such as orphaned grandchildren or Christian widows, who may not be entitled to inherit under customary laws. Additionally, it can elucidate matters related to joint accounts, communal living arrangements, and the appointment of guardians for children.
The Islāmic will encompass bequests, legacies, instructions, admonishments, and assignments of rights. Unlike secular legal systems, Islāmic law does not prescribe specific wording for a will, permitting oral or written declarations provided the testator's intention to execute the will posthumously is clear. Ideally, two witnesses should be present during the declaration of the will. A written will lacking witnesses may be deemed valid if it is in the testator's recognizable handwriting or bears their signature, according to Maliki and Hanbali jurisprudence.
Execution of the will occurs after settling debts and funeral expenses, with differing opinions regarding the payment of debts owed to Allah (e.g., zakah). While majority opinion favours their payment regardless of mention in the will, there exists divergence among Muslim jurists on this matter.
Adult Muslims of sound mind possess the legal capacity to draft a will, with adulthood defined as reaching puberty. The testator must be free from coercion, possess comprehension of their testamentary actions, and have ownership of the assets bequeathed. The right to revoke a will is afforded to the testator through a subsequent will, either explicitly or implicitly.
Traditional Sunni Islāmic law imposes limitations on the testator's power, notably restricting bequests to one-third of the net estate and prohibiting bequests in favour of legal heirs. However, certain Islāmic jurisdictions permit bequests to legal heirs provided they do not exceed one-third of the estate.
A legatee (al-mūṣa lahu) must exist at the time of the testator's death, with exceptions for general and continuing legatees like the poor or orphans. Legatees must be capable of owning the bequest, and any bequest made to a legal heir entitled to a share is invalid unless consented to by other legal heirs.
Acceptance or rejection of a bequest by a legatee occurs posthumously, with subsequent changes prohibited once a decision is made. If a legatee dies without acceptance or rejection, Hanafi jurisprudence considers non-rejection as acceptance, while other Sunni schools pass this right to the legatee's heirs.
Ownership of a bequest is transferred either at the time of the testator's death (Hanafi and Shafi'i) or upon acceptance of the bequest (Maliki and Hanbali). Uncertainty regarding the legatee's survival renders the bequest invalid, necessitating the legatee's existence at the time of the testator's death for the will's validity.
In cases of simultaneous death of the testator and legatee, the Hanafi, Maliki, and Shafi'i schools deem the bequest invalid, while the Hanbali school allows acceptance or rejection by the legatee's heirs.
The executor (al-waṣī al-mukhtār) manages the estate as appointed by the testator, tasked with fulfilling the testator's wishes in accordance with Islāmic law. Trustworthiness, truthfulness, and justice are essential qualities for an executor, with the option to appoint multiple executors, specifying their authority to act independently.
It is essential to acknowledge that this article serves as a brief introduction to traditional Sunni Islāmic law concerning the Islāmic will. Given the complexity of the subject matter, consultation with knowledgeable scholars and legal experts is strongly advised when drafting a will to ensure compliance with both Islāmic and local legal frameworks.
A. Hussain