09th Rabi’ath-Thaani 1444 AH
Assalamu alaykum warahmatullah wabarakaatuh.
Alhamdulillah for His favours and uncountable blessings upon us all. Whosoever Allah guides nobody can lead astray and whosoever Allah has left to stray nobody can show that person guidance. I testify that no one deserves any form of worship and adoration beside Allah and also testify that our leader and master, Sayyidina Muhammad is Allah’s distinguished servant and messenger to the whole of creation from its very beginning to the end of time.
I seek Allah’s benediction on the Holy prophet (the noblest of all mankind), his household and all those who believe in his message till the day of reckoning.
O brethren! I exhort you and I to worship Allah alone and not ascribe any partner to Him. Show gratitude for what Allah has bestowed upon you of His favours and be patient for what He is yet to give you. The subject of making a Will does not appear to be well understood by majority of Muslims, some of who consider it a western practice that Islam does not approve of. Some of us believe that Allah has already regulated the distribution of the estate of a deceased Muslim and will query the need to write a Will. This discussion is to provide guidance for us all on the issue of making a Will.
From the Shariah point, Will (Wasiyyah) is a set of instructions given by a living person to individuals whom he expects to survive him in matters relating to admonishment on keeping their faith, assignment of rights and duties and distribution of assets. With regard to the subject of Will, Allah “… prescribed for you, when death approaches any of you and is leaving wealth, that he makes a bequest to parents and next of kin, according to reasonable manners- a duty upon the righteous” (Q2:180).
This verse was revealed because people used to make bequests for the rich and leave nothing for their parents and relatives. However, this compulsion was later cancelled when Allah revealed the laws that fix the shares that parents and close relatives receive from the wealth of a dead person. Although a person should not make a bequest for an heir, if he does bequest less than a third for an heir, it will be given to the heir only if all the other heirs permit it after the person’s death.
The need to make a Will (Bequest) is reiterated in several other verses requiring that the administrators of the estate of the deceased should make distribution of the properties (using the Qur’an prescriptions) only after the payment of the bequests. The Holy Prophet (SAW) strengthened this requirement when he (SAW) said: “It is not right for a Muslim who has something to bequeath to sleep two consecutive nights without having his Will written with him” (Reported by Bukhari).
The obligation of writing a Will is further emphasized in situations when one approaches a dangerous undertaking such as war, major surgery, very long and risky journey (including trip for hajj), etc. In making a Will, a Muslim is required to pay attention to the following fundamental issues:
1. Debts owed to Allah which may not be fulfilled as they are unknown to the survivors of his estate. These debts are religious pledges, missed acts of ibadah, financial vows and unpaid Zakah.
2. Debts owed to the servants of Allah and trusts held on behalf of others are clearly stated to avoid disputes and conflicts.
3. Debts owed to the testator, the maker of the Will, which may remain unknown unless the debtors declare their indebtedness.
4. Muslims living in lands where the Shariah is not in practice have additional responsibility of ensuring that they make a Will in order to avert the possibility of using the secular standards in administering his estate. The testator should specify in his Will that the Shariah be applied in the administration of his estate.
5. Appointment of guardian for the minor children the testator is leaving behind is very important so as to avoid a situation where the children are taken over by unsuitable Muslims or even non-Muslim relatives.
6. The appointment of an Executor of the Will is also very important. The Executor will be responsible for tracking and assembling all the testator’s assets and liquidating his obligations.
7. Wills are not necessary for the legal heirs that Allah has identified and explained in great details in the Qur’an. It is prohibited to try to make some legal heirs have more than their legal portion through the instrument of the Will as it will not also be allowed that a legal heir is deprived of his inheritance.
8. It is recommended to bequeath to relatives who are not legal heirs in order to create good relationship after the testator’s demise.
9. The maximum a person can bequeath of his wealth through Will is one third of the entire estate.
10. The testator should have two just Muslim men, preferably from the same town or neighbourhood, witness his Will. However, a Muslim in a location where there are no other Muslims may appoint two non-Muslim men. (See Q5:106-108).
11. The witnesses to a Will are to be on oath, swearing by Allah, that they will divide the estate as directed by the Testator.
Every single individual who has anything to do with the Will has to be very careful to handle the matter as a trust upon which Allah will make enquiry on the Day of Judgement. 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 Allah and mentioned before other things, and there is a stern warning issued to those who change/alter or forge it. As a result, a proper understanding of Allah’s warnings contained in Q5:106-108 is critical.
“O you who have Imaan! When death draws (comes) near to any of you at the time of making a bequest (a will), there should be two just persons (present as witnesses to the will) from you (Muslims) or from another nation (non-Muslims) if you are on journey when the affliction of death befalls you. If you are in doubt (about the truthfulness of the two witnesses), then take hold of the two of them after salaah and they should swear by Allah, “We are not taking any price (any worldly gain by lying or by receiving bribes) for our oaths and our testimony even though he (the deceased) may be a relative and we will not hide testimony, for then (if we stand to gain anything or if we hide testimony) we shall be from among the sinners.” (Q5:106)
“If it is later discovered that the two of them were guilty of a sin (such as stealing something from the estate or concealing the truth), two other close relatives (of the deceased) from among those people who were sinned against (against whom the first two witnesses had sinned by stealing inheritance from them) should replace them (as witnesses). They (the two close relatives) must swear, “Indeed our testimony (that the property found in their possession belonged to the deceased) is truer than theirs (their lies) and we have not transgressed (we have not broken any laws of the Shar’iah), for if we did transgress, we shall be from the wrongdoers.” (Q5:107)
In this way (by allowing the close relatives to testify) it is more likely that they (the first two witnesses) will testify properly (without lying) or (more likely that) they will fear that oaths (of others) be repeated after they had taken their oaths (thereby exposing them as liars and making them transgressors). Fear Allah and listen (to His commands with the intention of practising)! Allah does not guide sinful (disobedient) people (because they do not want to be guided). [Q5:108]
And Allah requires you “who has believed to stand out firmly for Allah and be just witnesses. Do not let the enmity and hatred of others prevent you from being just. Be just as it is nearer to piety. And revere Allah; indeed, Allah is well acquainted with what you do” (Q5:8).
PART 2
We thank Allah who has shown us the straight path of those upon whom He is pleased with and not of those who have earned His anger or those who have gone astray. May the blessings and peace of Allah be with our Noble Prophet (SAW) and his household.
O servants of Allah! Know that Allah has “… indeed made you a moderate and a just nation”(Q2: 143) and this comes with the requirement that you conduct all your affairs with justice. It is only when you are just that you will qualify to be counted among the nation of Muhammad (SAW) which is the best nation that was sent to testify against people. In this regard, therefore, we need to exercise care and caution in the making of our Wills so that we do not tilt towards either of the extremes that may cause much trial for our families and dependants after we have gone back to Allah. On one side of the extremes, we have seen people who willed all their possessions to charities or even their dogs and thereby depriving their dependants the benefit of their wealth. On the other side, we have also seen situations where the Will gave only one beneficiary the whole estate while others are totally excluded.
O servants of Allah! Fear Allah in the making of your Will. Do not follow customs and local practices which are antithetical to the philosophy of Islam. We have some local practices where immediate relations of the deceased assume ownership of the estate without consideration for the wives and children left behind by the deceased. This practice has led to so much trouble and tribulations in our societies. So, Allah has decreed what should be done to ensure continued harmony and happiness after we leave the scene by ensuring that we are all guided when we make Wills or when our estates are distributed. The guidance for the Muslim is explained thus:
1. THE POSITION OF RELATIVES
You should know that not all the relatives qualify to inherit you when you die; those who qualify are dependent on several other factors which we will see later when we get deeper into the topic of Fara’id (Islamic Inheritance Law) if Allah permits. It is, therefore, recommended to make a bequest to relatives who are not legal heirs. The bequests are taken out of the estate before the distribution to recognized heirs. Allah says: “It is ordained for you, when death approaches any of you and is leaving wealth, that he should make a fair bequest in favour of the parents and near relatives – a duty upon those who have piety” (Q2:180). According to Ibn Abbas (RA) and many other companions, the part of this ayah pertaining to the parents has been abrogated by the ayah of inheritance while the remaining part relating to relatives continues to hold. However, in the event that the parent is one who is debarred from inheriting the estate of the son arising from the fact that the parent is not a Muslim or the he got the child outside of wedlock, he may be provided for in the Will.
The essence of this provision is to ensure that the legal heirs of your estate enjoy peace from the relatives through the gift they have received from the estate which would have been otherwise impossible going by the strict application of the law.
2. NON-MUSLIM RELATIVES
A disbeliever cannot be an heir to a Muslim. Usamah (RA) reported that Allah’s Messenger (SAW) said: “A Kafir cannot inherit a Muslim nor a Muslim (inherit) a Kafir.” In the event that a Muslim has a non-Muslim wife, mother or father, he may bequeath part of his estate to them in order to support such individuals after his death.
In another related circumstance, one may direct that a part of his estate be given to some unrelated individuals or institutions as he deems fit and pleasing to Allah without intending thereby to inflict harm on the legal heirs.
3. MAXIMUM BEQUEATHAL
A Muslim is not allowed to bequeath more than one-third of his estate through the Will. The bequeathed part is taken out of the estate before dividing the rest among the legal heirs. A person with large wealth is encouraged to use this injunction to support poor relatives who are non-heirs, in addition to other needy individuals and institutions.
Sa’d Ibn Abi Waqqas (RA) narrated that he was with Allah’s Messenger (SAW) in the Farewell Hajj. He was struck with severe illness in Makkah and felt that he was close to death. The Messenger (SAW) visited him and Sa’d said to him, “O Messenger of Allah, I am reduced to this state because of illness. I have vast wealth and no heirs except one daughter. Should I bequeath two-thirds of my estate (to others)? He (SAW) replied: No! He said, one half of my wealth then? He (SAW) replied, No! He said one third of my wealth then? He (SAW) said: “Yes, one third, and even one third is too much. Indeed, O Sa’d, it is better to leave your heirs well-off after you than to leave them as a burden to people (and he, SAW, expressed begging with a motion of his hand)”.
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 (SAW) said: “There is no will for the heirs.” (al-Tirmidhi). If the will is intended to harm the heirs or make things difficult for them, then that is haram, because Allah says: “ … so that no loss is caused (to anyone) …” [al-Nisaa’ 4:12]
4. DO NOT BE UNJUST WITH THE WILL
Allah has enumerated all the various individuals to inherit us and stated their shares from the inheritance. Their shares increase or decrease based on their relationship to the deceased and other considerations. It is therefore unlawful to change the ordained shares of the legal heirs using the instrument of the Will and thereby causing harm and oppression through deprivation or favouring some of them over others. Whatever instruction is given in the Will which contravenes what Allah has allocated will be disregarded.
“Allah commands you as regard your children’s (inheritance): to the male, a portion equal to that of two females … For parents, a sixth share of inheritance to each if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers or (sisters), the mother has a sixth … In that which your wives leave, your share is a half if they have no child; but if they leave a child, you get a fourth … In that which you leave, their (your wives) share is a fourth if you leave no child; but if you leave a child, they get an eighth of that which you leave after payment of legacies that you may have bequeathed or debts … These are the limits (set by) Allah and whosoever obeys Allah and His Messenger (Muhammad- SAW) will be admitted to Gardens under which rivers flow (in Paradise), to abide therein, and that will be the great success. And whosoever disobeys Allah and His Messenger and transgresses His limits, He will cast him into the Fire, to abide therein; and he shall have a disgraceful torment” (Q4:11-14).
O servants of Allah! We may have come to know some incidents where the instrument of Allah has been used to cause a lot of harm to legitimate heirs but Allah’s Messenger (SAW) has already warned the Muslims of the danger in this practice when he said: “(You should) neither initiate harm (toward others) nor respond (to their actions) by harming (them). Whoever harms others, Allah will harm him and whoever troubles others, Allah will trouble him.”
In the light of what has been said here, be guided and do not use the instrumentality of the Will to cause mischief and injustice after your death. We ask Allah for guidance and support in our struggle to abide by His injunctions.
“Verily, Allah enjoins justice and the doing good (for the sake of Allah) and giving help to kith and kin and forbids all evil deeds and all that is prohibited by Islamic law and all forms of oppression). He admonishes you, that you may take heed. And fulfill the Covenant of Allah when you have covenanted, and break not the oaths after you have confirmed them-as you have indeed appointed Allah your surety. Allah knows what you do” (Q16:90-91).
Wassalamu alal mursaleen wal-hamdu lillahi rabbil aalameen.
Suleiman Zubair
