October 21, 2021

Islamic Will

Question

(#016)

Assalamu Alaikum, Ramadan Mubarak…. I am seeking shariaa Will. Could you please explain to me how I can write up a Will.

Answer

بسم الله الرحمن الرحيم

السلام عليكم و رحمة الله و بركاته

حامدا و مصليا و مسلما

Muhtaram

We have received your query with regards to writing up a Will in Islam, our response is as follows:

It is very encouraging to hear that you are intending to draw up a Will. We will mention some points which will inshallah assist you in writing a Will according to Islam.Writing and preparing a Will is undoubtedly extremely important, especially in non-Muslim countries, insuring that upon death, one’s wealth and assets are distributed according to Shariah. There are a number of Islamic texts, both in the Noble Qur’an and Sunnah, which point to the importance of Will-making, for example:

Sayyiduna Abdullah ibn Umar Radiyallahu anhuma narrates that the Messenger of Allah Sallallahu alai wa sallam said: “It is not befitting for a Muslim who has something to make a Will of, to remain for two nights without having one’s last Will and testament written and kept ready with one.” (Sahih al-Bukhari, no: 2587) 

The narrator of this Hadith (Abdullah ibn Umar radiyallahu anhuma) stated after hearing this from Nabi Sallallahu alai wa sallam: “I did not let even one night pass by except that my Will would be kept by me.” (Musnad Ahmad, 2/4)

Therefore, it is essential that all Muslims leave a valid written Will so that our estate is distributed according to Shariah. Those who have not made a Will, as of yet, should haste and prepare a Will. Writing a Will is not only for old people, rather all those who have reached puberty should quickly get their Will prepared, for there is no guarantee of when one will die.

Below are simple and brief guidelines with regards to preparing and writing a Will:

The first and foremost aspect worth noticing here is that many Muslims are mistaken in believing that, writing a Will means distributing one’s wealth and estate amongst the inheritors during one’s lifetime.

This is incorrect, as making a Will does not mean one must divide one’s wealth amongst the various inheritors in one’s life; rather, one must merely stipulate in the Will that “upon my death, my executors will distribute my wealth according to Shariah”. One may also state that this will be determined by a local Muslim scholar or Mufti, who will be contacted and appointed by my executors upon my death.

The reason behind this is that the inheritance portions have been determined and allotted by Allah Ta’ala in the Qur’an. These portions vary according to who is alive at the time of one’s death. Each scenario will differ; it will depend on who is alive at the time of one’s death. Therefore, it is not possible to precisely determine the portions one’s beneficiaries will receive whilst one is still alive. 

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 (in collaboration with a knowledgeable scholar) which of your relatives are still alive and what fixed shares they are automatically entitled to inherit by applying the criteria of Shariah.

Furthermore, it is unlawful and invalid to make a bequest (Wasiyya) in favour of an individual who automatically is entitled to receiving a share of the estate, such as one’s spouse, children and parents, etc. Nabi Sallallahu alai wa sallam has said: 

“Verily Allah has given each rightful person their right, thus there is no bequest in favour of an inheritor.” (Sunan Tirmidhi, no: 2120)

However, if one wished to make a bequest/Will for a non-relative, or for a charity, such as a Masjid, Madrasah or a hospital etc then this would be allowed (and rewarded), but only up to a third of one’s total wealth. The remaining two thirds will be left to be distributed amongst the relatives according to the fixed shares prescribed by Allah Ta’ala. If one does not make a bequest of up to one third of the estate, then all of the estate will be divided between the surviving heirs. Nabi Sallallahu alai wa sallam has prohibited from making a Wasiyya which is more than one third, and regarding a third also, he stated: “And a third is also more/a lot (although permissible)”. (Sunan Tirmidhi, no: 2116)

The second point to remember here, which is very important, is that one must distinguish between a bequest/Will (Wasiyya) and a gift (Hiba). Many people wish to distribute their estate whilst they are still alive, and they regard this is a Wasiyya. Such people fail to differentiate between a Wasiyya and a Hiba.

What a person gives to another in one’s lifetime is considered a “gift” whilst attributing the giving of something after one’s death is a “bequest or Will (Wasiyya)”. For example, if I give my house or my car to a friend whilst I am alive, then that will be a gift, but if I was to say that my friend will take ownership of my house after I pass away, then that is a bequest. 

At times, one would like to distribute one’s estate amongst the children whilst one is alive. This will be valid provided it is given as a gift and not a bequest, because to make a bequest (or Will) for a relative who already qualifies to inherit is invalid, as mentioned previously. As such, if one desires to distribute the estate amongst the children whilst one is alive, then it does not have to be in accordance with the Shariah laws of inheritance, for it is merely a gift. There is more detail regarding how a person should distribute one’s estate during one’s life and the laws of Hiba (gifting), however we will suffice on this much for the sake of brevity. One may consult with an Islamic Scholar for more detail.

However, one-point worth noting here is that Islamically a gift is only valid and complete when the one to whom the gift is given, takes full ownership and possession of the item. Merely, registering it on one’s name is of no consequence in Shariah, hence the gift will be considered invalid.

The possession in houses and properties will be established by the giving of keys, removing of furniture, and leaving no obstacles for the one whom the gift is given to come and reside in the property. Many times it is observed that the father only verbally says that this is your house, but he himself resides in the house and it is considered to be his. This will not be a valid gift. A gift is such that if the son was to say to the father: you must move out, he moves out without any hesitation, and it is completely understood to be the son’s house.

Thirdly, there is the issue of the husband and wife. If the house is solely owned by the husband, then upon his death, it would be distributed among all the inheritors. Many times it is observed that years pass by after the husband’s death and the inheritance is not distributed. The deceased’s wife and some children keep residing in the house without even thinking about distributing it. This is a grave sin committed by all those who overlook this great injunction of Shariah.
If the house was jointly owned by the couple, then in the event of one of the spouse’s death, half of the house will remain in the ownership of the other spouse, and the remaining half will be distributed.

Note that if the inheritors give their consent in their mother or father residing in the house, then this is permissible. However, what is necessary is that the shares are distributed, and then they may give their consent in allowing their mother or father to reside. However, one must be extremely precautious here, for all the inheritors must consent to this from their heart and must not be pressurised into it. If even one inheritor disagrees, his/her share will have to be given to him/her.

The fourth point to note with regards to inheritance is that at times the deceased makes an unlawful and invalid bequest, such as saying that, my eldest son will takfe such and such property, the other such and such, my daughter will take the house, etc.

In this case, it will be unlawful (Haram) and a grave sin for the relatives to distribute the inheritance according to the bequest made by the deceased. The estate must be distributed in accordance with the Qur’an and Sunnah.

Finally, one must make sure that one’s Will meets the requirements of the law of the land i.e. New Zealand law, for failing to do this may well render one’s Will legally invalid. So in order to ensure that one’s assets are distributed in accordance with the Shariah after one’s death, one must write a Will, and that “Will” must comply with the requirements of the country one is residing in. Therefore, it is advisable that one seeks the advice of an expert practicing Muslim solicitor.
Having understood the above general guidelines regarding Will-making, let us now look at how an Islamic Will is written. Normally when making a Will, one would stipulate the following: 

1) Revoking of all previous Wills.

2) Naming the executors of the Will.

3) Payment of funeral and burial expenses.

4) Payment of all debts connected to the servants of Allah Ta’ala: After one’s death, paying off one’s debts is given primary consideration. Thus, one’s leftover wealth will first be utilized in repaying the debts, and then the remainder, if any, will be distributed amongst the inheritors according to the Shariah. Note that this is with regards to debts payable to the servants of Allah (and not with regards to liabilities due by Shariah, such as unpaid Zakat, etc.). Also, there is no condition here of it being from only one third of one’s wealth.

5) Payment of any bequest (Wasiyya): This refers to any religious liabilities, such as unpaid Zakat, Fidya for Salat, etc., and also anything that one would like to give in charity. However, the condition here is that this is only permissible from one third of one’s wealth.
It is worth remembering here that along with one’s written Will, one should have a separate document stipulating the number of unperformed prayers, missed fasts, unpaid Zakat, unperformed Hajj, any other religious obligations and debts payable to the servants of Allah Ta’ala.

One must strive in accomplishing these obligations in one’s life, and make the necessary amendments to the document whenever an obligation is fulfilled. For example: One had 500 unperformed prayers. In such a case one should stipulate this in the document. Thereafter, whenever, a prayer is made up, it should be deducted from the total of 500. This “important” document should be attached with the Will in order to let the relatives know of one’s obligations and liabilities after one’s death.

6) Distribution of the remaining two thirds of one’s estate (or full, if one does not include no.

5) Among the inheritors in accordance with Sunni Islamic law, and in consultation with a qualified local scholar or Mufti.

7) Signing of the document by both the Will-maker and the relevant witnesses.

Finally, the responsibility of the relatives is that they haste in distributing the estate of the deceased as quick as humanely possible. Being negligent in this regard will be highly sinful. All the inheritors will be jointly responsible for this distribution.

Also, when totalling the deceased’s assets, the inheritors must include every big and small item left behind by the deceased at the time he/she passed away, which includes Properties, house, car, financial instruments, cash, gold, silver, clothes, furniture, etc.  At times, people overlook small items and give them away in charity without the prior consent of all the inheritors, which is unlawful (haram). The permission and full consent of all the inheritors must be sought before giving away any item to anybody.1 For more detail and specific scenarios refer to an Islamic Scholar.

And Allah Ta’ala knows best

Muhammad Irshad Motara

16th Ramadan 1441

10th May 2020

عَنْ سَلْمَانَ بْنِ عَامِرٍ عَنْ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ قَالَ إِنَّ الصَّدَقَةُ عَلَى الْمِسْكِينِ صَدَقَةٌ وَهِيَ عَلَى ذِي الرَّحِمِ ثِنْتَانِ صَدَقَةٌ وَصِلَةٌ

658 سنن الترمذي كتاب الزكاة باب ما جاء في الصدقة على ذي القرابة

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