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Chapter thirty-eight » Inheritance (Irth) → ← Chapter thirty-six » Charitable Endowment (Waqf)

Chapter thirty-seven » Will (Waṣiyyah)

Ruling 2711. A will is an instruction by a person for certain tasks to be performed for him after his death. In a will, a person states that after his death something from his property is to be owned by someone, or that something from his property is to be transferred to someone or be spent on charitable and good causes, or that he appoints someone to be the custodian and guardian of his children and dependants. A person who gives effect to a will is called an ‘executor’ (waṣī).

Ruling 2712. If a person who is unable to speak conveys his intentions by indicating, he can make a will for any task. In fact, a will made by a person who is able to speak but who conveys his intentions by indicating is also valid (ṣaḥīḥ).

Ruling 2713. If a document is found with the signature or seal of the deceased, in the event that there are contextual indicators that make it appear to be the deceased’s will, it must be acted upon.

Ruling 2714. A testator (mūṣī) [i.e. a person who makes a will] must be of the age of legal responsibility (bāligh) and sane (ʿāqil); he must not be foolish with finances (safīh)(1) and he must voluntarily make the will. Therefore, the will of a child who is not bāligh is not valid unless the child is ten years old and his will is for his close relatives or it is for spending on general charitable causes; in these two cases, the will is valid. However, if he makes a will for other than close relatives, or if the child is seven years old and he makes a will that pertains to a small part of his estate, then the validity of such a will is problematic (maḥall al-ishkāl);(2) therefore, precaution (iḥtiyāṭ) must be observed here. If the person is foolish with finances, his will pertaining to his wealth is ineffective but it is effective with regard to other matters, such as preparing his body for burial.

Ruling 2715. If a person injures himself with the intention of committing suicide or consumes deadly poison and then makes a will for part of his estate to be spent in a particular way and he then dies, his will is not valid unless he was performing jihad in the way of Allah. His will with respect to non-financial matters, however, is valid.

Ruling 2716. If a person makes a will that something from his property is to be owned by someone, and if the latter accepts the will – irrespective of whether he accepts it during the lifetime of the testator or after his death – then, as long as the item is not more than a third of the testator’s estate, he becomes the owner of the item upon the testator’s death.

Ruling 2717. Whenever a person notices the signs of his approaching death, he must immediately return those things that he was holding on trust (amānah) to their owners, or he must inform them as per the details mentioned in Ruling 2361. If he is indebted to someone and the date for repaying the debt is not yet due, or it is due but the creditor does not ask for it, or the creditor asks for it but he is unable to pay him, then in such cases, he must make arrangements such that he is confident (i.e. he has iṭmiʾnān) that his debt will be paid to the creditor after his death. For example, in the case where his debt is not known to others, he must make a will [regarding this debt] and get someone to witness it. However, if he is able to pay the debt and its date is due and the creditor asks for it, he must immediately pay it even if he does not notice the signs of his approaching death.

Ruling 2718. If a person who notices the signs of his approaching death owes the one-fifth tax (khums), alms tax (zakat), or maẓālim(3) but is unable to pay it at present, in the event that he has sufficient wealth to pay it, or he deems it probable that someone else will pay it, he must make arrangements such that he is confident that his debt will be paid after his death. For example, he must make a will for a trusted individual [to pay it]. The same applies if hajj is obligatory on him and he is unable to get a representative (nāʾib) [to perform hajj on his behalf] at the present time. However, if he is able to pay the debt of his religious dues at the present time, he must pay it without delay even if he does not notice the signs of his approaching death.

Ruling 2719. If a person notices the signs of his approaching death and has lapsed (qaḍāʾ) prayers (ṣalāh) and fasts (sawm), he must make arrangements such that he is confident that they will be made up on his behalf after his death. For example, he must make a will that someone is to be hired from his estate to perform them. In fact, if he does not have an estate but deems it probable that someone may perform them free of charge, again it is obligatory (wājib) on him to make a will [regarding this]. However, if there is someone, such as his eldest son, who he knows would perform his lapsed prayers and fasts were that person to be informed of them, then it is sufficient for that person to be informed and it is not necessary to make a will [regarding this].

Ruling 2720. If a person who notices the signs of his approaching death has kept some property with someone, or he has hidden it in a place not known to his heirs, the obligatory precaution (al-iḥtiyāṭ al-wājib) is that he must inform them of it. Furthermore, it is not necessary for him to appoint a custodian and guardian for his children who are minors (ṣaghīr); however, in the event that their property would perish or they themselves would be ruined, he must appoint a trustworthy (amīn) custodian for them.

Ruling 2721. An executor must be sane; and with regard to matters concerning the testator himself, and, based on obligatory precaution, matters concerning others, an executor must also be trustworthy. Furthermore, based on obligatory precaution, the executor of a Muslim must be Muslim. To appoint a minor to be an executor on his own is not correct (ṣaḥīḥ), based on obligatory precaution, if the testator intends the minor to have disposal over the estate while he is still a minor and without the permission of his guardian (walī). The minor’s discretions over the estate must be carried out with the permission of a fully qualified jurist (al-ḥākim al-sharʿī). But if the testator intends the minor to have disposal over the estate after he has reached the age of legal responsibility (bulūgh) or with the permission of his guardian, then there is no problem.

Ruling 2722. If a person appoints a number of executors for his will and gives permission for each of them to execute the will independently, it is not necessary for them to attain each other’s permission in executing the will. However, if the testator does not give such permission, irrespective of whether or not he has stated that they should jointly execute the will, then they must execute the will in consultation with each other. If they are not prepared to jointly execute the will and there is no legal impediment that prevents each of them from doing so, then a fully qualified jurist may compel them to jointly execute the will. And if they fail to comply or have a legal impediment that prevents each of them from doing so, then the fully qualified jurist may appoint another person in place of any one of them.

Ruling 2723. If a person retracts his will – for example, he states that the one-third of his estate(4) is to be given to someone but then states that it must not be given to him – such a will becomes void (bāṭil). And if he changes his will – for example, he appoints a custodian for his children but then appoints someone else in his place – his first will becomes void and his second will must be acted upon.

Ruling 2724. If a person does something that demonstrates he has retracted his will – for example, he sells the house that he had left to someone in his will, or he appoints an agent (wakīl) to sell the house, contrary to what he had stated in his will – such a will becomes void.

Ruling 2725. If a person makes a will that a particular item is to be given to someone and thereafter makes a will that half of it is to be given to someone else, then half of that thing must be given to each of them.

Ruling 2726. If a person gifts part of his wealth to someone during the period of his terminal illness and makes a will that after his death some of his estate is to be given to someone else, then, in the event that one-third of his estate is insufficient to cover both [i.e. the gift and what was bequeathed in the will] and the heirs are not prepared to give permission for more than one-third to be given from the estate, first the property that was gifted must be taken out of the one-third, and then the remaining property must be dealt with in accordance with the will.

Ruling 2727. If a person makes a will that the one-third of his estate must be sold and the proceeds from it must be spent in a particular way, his words must be acted upon.

Ruling 2728. If a person states during his terminal illness that he owes an amount to someone, in the event that he is believed to have a vested interest in saying this, namely to inflict a loss on his heirs, they must give the specified amount from the one-third of his estate. However, if he is not believed to have such a vested interest, his avowal (iqrār)(5) is effective and they must pay the amount from his main estate.

Ruling 2729. If a person makes a will that something is to be given to a particular beneficiary, it is not necessary that the beneficiary be alive at the time the will was made. Therefore, if the beneficiary is alive after the testator’s death, it is necessary that the thing be given to him. If, however, the beneficiary is not alive after the death of the testator, then, if it can be construed from the will that the thing can be used in other ways, it must be used in a way that is nearest to the testator’s original intention; otherwise, the heirs can share it among themselves. However, if a person makes a will that something from his property is to be owned by a particular beneficiary after his death and that beneficiary is alive at the time of the testator’s death – albeit as a foetus into which the soul has not yet entered – the will is valid; otherwise, it is void, and the heirs will share what was bequeathed among themselves.

Ruling 2730. If a person comes to know that someone has appointed him as his executor and he informs the testator that he is not prepared to execute his will, it is not necessary for him to execute the will after the testator’s death. However, if he does not come to know before the testator’s death that the testator had appointed him as his executor, or he comes to know this but does not inform the testator that he is not prepared to execute his will, then as long as it does not cause him excessive difficulty (mashaqqah), he must execute his will. And if the executor becomes aware before the testator’s death but at a time when the testator is unable to appoint another executor due to the severity of his illness or for some other reason, then based on obligatory precaution he must accept to execute the will.

Ruling 2731. If a testator dies, his executor cannot appoint another person to execute the will and excuse himself from doing it. However, if the executor knows that the testator did not intend for him to perform the task himself but rather his intention was simply that the task be performed, then he can appoint another person on his behalf.

Ruling 2732. If a person appoints two individuals as his executors and one of them dies, or becomes insane or a disbeliever (kāfir), then, if it can be understood from the wording of the will that in such a situation the other person is to act as executor on his own, the will must be executed in this way; otherwise, a fully qualified jurist will appoint another person in his place. If both of them die or become insane or apostate, the fully qualified jurist will appoint two people. However, if one person is able to execute the will, it will not be necessary for him to appoint two people.

Ruling 2733. If an executor cannot carry out the will of the deceased by himself, albeit by appointing an agent or hiring someone, a fully qualified jurist will appoint another person to assist him.

Ruling 2734. If some of the deceased’s estate perishes in the possession of the executor, in the event that he was negligent in safeguarding it or he was excessive – for example, the testator had specified that a particular amount be given to the poor (fuqarāʾ) in a particular city but the executor takes the property to a different city and it perishes on the way – in such a case, the executor is responsible (ḍāmin). However, if he was neither negligent nor excessive, he is not responsible.

Ruling 2735. If a person appoints someone as his executor and says, ‘Should this executor die, so-and-so is to be my executor’, then after the first executor dies, the second executor must execute the will.

Ruling 2736. Hajj that had become obligatory on a deceased person on account of him being able (mustaṭīʿ)(6) to perform it, and the debts and religious dues that are obligatory to pay – such as khums, zakat, and maẓālim – must be paid from his entire estate even if he has not made provision for these in his will. As for dues pertaining to recompense (kaffārah) and vow (nadhr), including hajj that had become obligatory on account of a vow, these are paid from the one-third of his estate if they have been mentioned in a will.

Ruling 2737. If the deceased’s estate exceeds the amount required to pay for his debts, his obligatory hajj, and his obligatory religious dues like khums, zakat, and maẓālim, then, in the event that he has made a will that the one-third of his estate or part of the one-third of his estate should be spent for a particular purpose, his will must be executed accordingly. And if he has not made a will, the remaining amount belongs to his heirs.

Ruling 2738. If the dispensation specified by a testator is more than one-third of his estate, his will with regard to the amount exceeding one-third will be valid only if his heirs give permission by words or action; heartfelt consent is not sufficient. If they give permission some time after his death, the will is valid. And in the event that some of his heirs give permission and others do not, the will is valid and effective only with regard to the shares of those who give permission.

Ruling 2739. If the dispensation specified by a testator is more than one-third of his estate and his heirs give permission for it, they cannot retract their permission. If during the lifetime of the testator they deny permission, they can give permission after his death. However, if after his death they deny permission, then permission given afterwards is ineffectual.

Ruling 2740. If a person makes a will that his khums, zakat, or other debts must be paid from the one-third of his estate and that someone should be hired to perform his lapsed prayers and fasts and recommended acts such as feeding the poor, then, first his debts must be paid from the one-third of his estate, and if anything remains thereafter, it must be used for hiring someone to perform his lapsed prayers and fasts. If anything still remains thereafter, it must be used for the recommended acts specified by the deceased. In the event that one-third of his estate is adequate only to pay for his debts and the heirs do not give permission for more than a third of his estate to be spent, then his will with regard to his lapsed prayers and fasts and recommend acts is invalid (bāṭil).

Ruling 2741. If a person makes a will that his debts are to be paid off, that someone is to be hired to perform his lapsed prayers and fasts, and that recommended acts are to be performed on his behalf, then, in the event that he does not stipulate in his will that these are to be paid from the one-third of his estate, his debts must be paid from his entire estate. If anything remains thereafter, one-third of it must be spent on the lapsed prayers and fasts and the recommended acts that he had specified. In case one-third of the remaining wealth is not sufficient, then, if his heirs give permission, his wishes in his will must be executed. If they do not give permission, the lapsed prayers and fasts must be paid for from one-third of the remainder, and if anything remains thereafter it must be used for the recommended acts that he had specified.

Ruling 2742. If a person says, ‘The deceased had willed for such and such amount to be given to me’, then what is claimed by him must be given to him in the following cases:

1.
two just (ʿādil) men verify his claim;
2. he takes an oath (qasam) and one just man verifies his claim;
3. one just man and two just women testify to his claim;
4. or four just women testify to his claim.

If one just woman testifies to his claim, then one-quarter of what he claims must be given to him; if two just women testify, half of it must be given to him; and if three just women testify, three-quarters of it must be given to him. If his claim is verified by two men from the People of the Book (ahl al-kitāb)(7) who are dhimmīs(8) and who are considered to be just according to their own religion, and there is no Muslim to testify, then what is claimed by him must be given to him.

Ruling 2743. If a person says, ‘I am the executor of the deceased in disposing of his estate’, his claim will be established if two just men verify it, or, if there is no Muslim to testify, two dhimmī men who are considered to be just according to their own religion verify his claim. Similarly, his claim will be established by the avowal (iqrār) of the heirs.

Ruling 2744. If a person makes a will that something from his estate is to be given to an individual and the latter dies before he can accept or reject it, his heirs can accept the property as long as they have not rejected the will. However, this rule (ḥukm) applies when the testator does not retract his will; if he does retract it, they will have no right over the property.

(1) Ruling 2091 provides further clarification of this term: it refers to someone who spends his wealth in futile ways.

(2) As mentioned in Ruling 6, the term ‘problematic’ (maḥall al-ishkāl) amounts to saying that the ruling is based on obligatory precaution.

(3) Maẓālim refers to property which has been unrightfully or unknowingly taken.

(4) This refers to the maximum amount of one’s estate over which he has discretion in a will for it to be disposed of in accordance with his wishes after his death.

(5) An avowal in Islamic law is when someone admits to a right to his own detriment or denies a right for himself over someone else.

(6) See Ruling 2045, condition 4.

(7) As mentioned in Ruling 103, the ‘People of the Book’ are Jews, Christians, and Zoroastrians.

(8) Dhimmīs are People of the Book who have entered into a dhimmah treaty, i.e. an agreement that gives them rights as protected subjects in an Islamic state.
Chapter thirty-eight » Inheritance (Irth) → ← Chapter thirty-six » Charitable Endowment (Waqf)
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