Works : Islamic Laws
2703. A Will is purported to direct that after one's death, a certain task be completed, or that a portion of his property be given in ownership to someone, or that the ownership of his property be transferred to someone, or that it be spent for charitable purposes, or that he appoints someone as guardian of his children and dependents. A person who is to give effect to a Will is called executor (Wasi).
2704. If a person who is dumb, can make himself understood by means of signs, he can Will for anything he likes; and even if a person who can speak, makes a Will by means of signs and makes himself understood, his Will will be valid.
2705. If a written paper is found, signed and sealed by a deceased person, and if it is known or conveyed that he wrote it as a Will, it should be acted upon. But if it is known that it was not his intention to make any Will, and that he had simply made some notes for a Will to be written later, it will not be considered as a Will.
2706. A person making a Will should be baligh, sane, and he should not be a feeble-minded squanderer. And the Will must have been made with free will and choice. A Will made by a non-baligh child is invalid, but if a child of ten years of age Wills for the benefit of his blood relatives, or for general charity, then that Will is valid.
But if he Wills for the benefit of those other than his blood relatives, or if a seven year old child WIlls that a certain part of wealth be for someone, or be given to someone, that Will is a matter of Ishkal, and in both cases, precaution must not be ignored. As for the feeble-minded squanderer, his Will related to his property is not valid, but in matters other than the property, like in matters of some tasks or duties to be performed for the deceased, his Will is valid.
2707. If a person who injures himself intentionally, or takes a poison, because of which his death becomes certain or probable, makes a Will that a certain part of his property be put to some particular use, his Will is not in order.
2708. If a person makes a Will that something from his property will belong to someone, and if that person accepts the Will, even if his acceptance took place during the lifetime of the testator, that thing will become his property after the death of the testator.
2709. When a person sees signs of approaching death in himself, he should immediately return the things held in trust by him to their owners, or should inform the owners, acting according to the details already mentioned in rule no. 2351. And if he is indebted to others, and the time for repayment of the debt has matured, and if the creditors make the demand, he should repay the debt.
And if he is not in a position to repay the debt, or the time for its repayment has not yet matured, or the creditor has not yet demanded, he should make arrangements to ensure that his creditor will be paid after his death, like, by making a Will to inform those who are unaware of the debt and then appoint witness to the Will.
2710. If a person who sees signs of approaching death in himself, has a debt of Khums and Zakat, or has other liabilities, and if he cannot make payment immediately, he should make a Will directing payment, if he owns some property, or if he knows someone will pay on his behalf. The same rule applies if he has obligatory Hajj on him. But, if he is capable of paying his religious dues immediately, he should pay at once, even if he sees no signs of impending death.
2711. If a person who finds signs of approaching death in himself, has lapsed (Qadha) of some prayers and fasts due to him, he should direct in his Will that a person be hired and paid from his estate for their performance. In fact, even if he does not leave any estate, but feels it probable that someone would perform them without taking any fees, it is obligatory for him to make a Will in this behalf. And if he has someone like his eldest son who would perform, it is sufficient to inform him about it, and it is not obligatory to Will in that respect.
2712. If a person who finds signs of impending death in himself has deposited some property with some other person, or has concealed it in some place of which his heirs are not aware, and if owing to the ignorance of the heirs their right is lost, he should inform them about it.
And it is not necessary for him to appoint a guardian, or an administrator for his minor children, except when it is feared that their property may perish, or they themselves may be ruined without an administrator, in which case, he should appoint a trustworthy administrator for them.
2713. The executor (Wasi) should be sane and trustworthy in matters related to the testator, and as a precaution, in matters related to others also. And it is necessary as a precaution, that the executor of a Muslim should be a Muslim.
To appoint a Na-baligh child alone for putting the Will into effect, is not in order, if the said child is expected to exercise discretion without permission of the guardian. But if the child is directed to put the Will into effect after having become baligh, or with the permission of the guardian, there will be no objection.
2714. If a person appoints more than one executors, allowing each of them to execute the Will independently, it will not be necessary that they should obtain permission from one another for the execution of the Will. And if he had not given any such permission - whether he had or had not said that both of them should execute the Will jointly, they should execute the Will in consultation with one another.
And if they are not prepared to execute the Will jointly, and this unwillingness is not occasioned by any religious scruple, the Mujtahid can force them to do so, and if they do not obey his orders, or any one has a religious excuse for not being prepared to act jointly, then the Mujtahid can replace the dissenting executor.
2715. If a person retracts a directive in his Will, for example, if he first says that 1/3 of his property should be given to a person, and then says that it should not be given to him, the Will becomes void. And if he changes his Will, for example, if he appoints an administrator for his children, and then replaces him with another person, his first Will becomes void, and his second Will should be acted upon.
2716. If a person conducts himself in a manner which shows that he has drawn back from his Will, for example, if he sells a house which he had willed to give away to someone, or appoints someone as his agent to sell it in spite of his original wish, the Will becomes void.
2717. If a person makes a Will that a particular thing be given away to someone, and later changes it to say that half of the same thing should be given to another person, that thing should be divided into two parts, and one part should be given to each of them.
2718. If a person who is on his death-bed, bestows a part of his property as gift on a certain person, and makes a Will that after his death another quantity be given to yet another person, and if both the gifts exceed one-third of his estate, and the heirs are not prepared to approve the excess, then in that case the first endowment should be given to the first beneficiary, and whatever remains from one-third should be spent according to the Will.
2719. If a person makes a Will that 1/3 of his property should not be sold and its income should be spent for some particular purpose, his instructions should be followed.
2720. If a person says during his terminal illness, that he owes certain amount to someone, and if he is suspected of having said that to harm his heirs, the amount specified by him should be given out of 1/3 of his property; and if he is not suspected of any such motive, his admission will be valid, and the payment should be made out of his estate.
2721. When a person makes a Will that something be given to another person, it is not necessary that that beneficiary should be existing at the time of the Will. If, therefore, he makes a Will that something be given to a child who may possibly be born of a particular wife, it is necessary that the thing should be given to the child if he is born after the death of the testator.
And if he is not born, and if the Will is construed as general, then it should be spent in a manner which would be nearer to the object of the Will, according to the testator.
But, if he makes a Will that after his death, a portion of his property will be owned by a particular person, and if that person exists at the time of the death of the testator, the Will is in order, otherwise it is void, and whatever he willed for that person should be divided by the heirs among themselves.
2722. If a person comes to know that someone has appointed him his executor, and he informs the testator that he is not prepared to perform the duties of an executor, it is not necessary for him to act as an executor after the death of the testator.
But, if he does not come to know of his appointment before the death of the testator, or comes to know about it, but does not inform the testator that he is not prepared to act as an executor, he should execute the Will if the execution of the Will does not involve any hardship to him.
Also, if the executor comes to know of his appointment at a time when due to serious illness or some other hindrance, the testator cannot appoint any other executor, he should, on the basis of precaution, accept the appointment.
2723. After a testator dies, the executor cannot appoint another person to execute the Will and retire himself. But, if he knows that the deceased did not mean that the executor should execute the Will himself, what he wanted was only that the given work should be accomplished, he can appoint another person on his behalf.
2724. If a person appoints two persons as joint executors, and if one of them dies, or becomes insane, or an apostate, the Mujtahid will appoint another person in his place. And if both of them die, or become insane or apostates, the Mujtahid will appoint two persons in their place. However, if one person can execute the Will, it is not necessary to appoint two persons for the purpose.
2725. If an executor alone cannot perform all the tasks laid down in the Will of the deceased, even by appointing someone as his agent or by hiring someone, then the Mujtahid will appoint someone to assist him in his duties.
2726. If a quantity from the property of a dead person is lost or damaged while in the custody of the executor, and if he has been negligent in looking after it, or has gone beyond moderation, he will be responsible.
For example, if the dead person had willed him to give a certain quantity to the poor of a particular town, and he took it to some other town, and in the process it has perished, he will be responsible for it. But if, he has not been negligent nor immoderate, he will not be responsible for the loss.
2727. If a person appoints someone as his executor, and says that after that executor's death, another person should be the executor in his place, the second executor should perform the tasks laid down in the Will of the deceased, after the death of the first executor.
2728. If obligatory Hajj remained unperformed by the dead person, or debts and dues like Khums, Zakat and Mazalim (wealth wrongly appropriated) which were obligatory to pay, were not paid, they should be paid from the estate of the deceased though he may not have directed in his Will for them.
2729. If the estate of the deceased exceeds his debt and expenses for obligatory Hajj, and obligatory religious dues like Khums, Zakat and Mazalim, and if he has also willed that 1/3 or a part thereof of his property be put to a particular use, his Will should be followed, and if he has not made a Will, then what remains is the property of the heirs.
2730. If the disposal specified by the deceased exceeds 1/3 of his property, his Will in respect of what exceeds the 1/3 of his property will be valid only if the heirs show their agreement, by words or by conduct.
Their tacit approval will not suffice. And even if they give their consent after some time, it is in order. But if some heirs permit and others decline to give consent (to the Will being acted upon), the Will is valid and binding only in respect of the shares of those who have consented.
2731. If the dispensation specified by the deceased exceeds 1/3 of his property, and his heirs give consent to that dispensation before his death, they cannot withdraw their permission after his death.
2732. If a person makes a Will that Khums and Zakat and other debts due to him should be paid out of 1/3 of his property, and also someone be hired for performing his qadha prayers and fasts, and also perform Mustahab acts like feeding the poor, the precaution will be that, his debt should be paid first out of the 1/3 of his property, and if there is a balance, a person should be hired to perform his qadha prayers and fasts, and if there is still a residue, it should be spent on the Mustahab acts specified by him. If, however, 1/3 of his property is sufficient only for the payment of his debts, and his heirs, too, do not permit that anything more than the 1/3 of his property should be spent, his Will in respect of prayers, fasts, and Mustahab acts is void.
2733. If a testator wills that his debt should be paid, and also someone should be hired for the performance of his qadha prayers and fasts, and also Mustahab acts should be performed, but does not direct that the expenses for those acts should be paid from 1/3 of his estate, then his debt should be paid from his estate, and if anything remains, 1/3 of it should be spent on prayers and fasts and Mustahab acts specified by him.
And if that 1/3 is not sufficient, and if his heirs permit, his Will should be implemented by paying from their share, and if they do not permit, the expenses of prayers and fasts should be paid from the 1/3 of his estate, and if anything remains it should be spent on the Mustahab acts specified by him.
2734. If a person claims that the deceased had willed that a certain amount should be given to him, and two Adil men confirm his statement, or if he takes an oath, and one Adil man also confirms his statement, or if one Adil man and two Adil women, or four Adil women bear witness to what he says, the amount claimed by him should be given to him.
And if only one Adil woman bear witness, 1/4 of the amount claimed by him should be given to him, and if two Adil women bear witness, 1/2 of that amount, and if three Adil women bear witness, 3/4 of it should be given to him.
Also, if two non-Muslim males from amongst the people of the Book, who are esteemed as Adil in their own religion, confirm his statement, and if the dead person was obliged to make a Will while no Adil man and woman was present at that time, the amount claimed by that person should be given to him.
2735. If a person claims that he is the executor of the deceased, and can act according to the Will and put it into effect, or that the deceased had appointed him an administrator of his children, his statement should be accepted only if two Adil men confirm it.
2736. If a person makes a Will that something from his estate is for a particular person, and that beneficiary dies before accepting or rejecting it, his heirs can accept it as long as they do not reject the Will. However, this order applies when the testator does not retract his Will, otherwise the beneficiary have no right to lay claim to that thing.