THE IMPORTANCE OF WASIAT

IN ISLAM

TRANSACTIONS IN ISLAMIC
LAW
DEM2237
ENTER
01
NURUL AMIRA BT ABDUL GHAFOOR (DIL191002)
02 JESMINE NUR BT ABDULLAH (DIL191011)
MUHAMMAD ABDUL HAKIM B MOHAMAD GHAZALAN
(DIL192007)
03 AIDA QASRINA BINTI AZAHAR (DIL192009)
ANEESAH ZAHIRAH BT ABDUL MUTTAALIB (DIL192010)
ILYA NATASHA BT MOHD NAZRIN (DIL193034)
04 NADHIRA BT ZAIDIN (DIL193046)
AMSYAREENA IWANI BT MOHD KHAIRUL AMRU (DIL201028)
KHAIRUNNISA BT AZHAN AFFANDY (DIL201032)
RAIHAN IZZATI BT RUDY (DIL201043)
 INTRODUCTION

DEFINITION OF WASIAT
01
● Refers to a will made by a Muslim
02 ● The donor of property expresses his last wishes in writing or orally as to
how any of his property should be allocated to specific persons.
03 ● If the donor wishes to leave his property to a non-Muslim parent or a
stranger, such as foster children, he will do so by writing a will.
● If he wants to make a donation of more than one-third of his estate to a
04 non-heir, the consent of the legitimate heirs is necessary.
● Section 2(1) of Muslim Wills (Selangor) Enactment, 1999
● Section 2(1) of Muslim Wills (Negeri Sembilan) Enactment 2004
● Section 2 ( 1 ) Muslim Wills (Malacca) Enactment 2005
01 - Hadith Sahih Al-Bukhari, Hadith Ibn Umar

02 - Selangor Enactment:
i. Section 5
03 - Rukun Wasiat

i. The Testator (Section 6(2) - Section 6(4) &

04
Section 15
ii. The Beneficiary (Section 7)
iii. The Estate (Section 9)
iv. The Offer & Acceptance
 DALIL
● In cases where a Muslim dies and leaves a wasiat, the jurisdiction to manage the estate of the deceased
rests with the Civil High Court and the Syariah Court respectively on procedural and legal law.
01
● The existence of these two jurisdictions has given rise to a conflict of jurisdiction between the High
Court and the Syariah Court especially when an application for probate from the High Court is required
02 to formulate the appointment of an executor which must be made through a valid wasiat.

● In this context, the silent law on the conditions for the will is first confirmed by the Syariah Court
03 before the probate can be granted to the executor.

● Aims to analyse the jurisdiction of the High Court and the Syariah Court to examine the laws and
04 procedures related to the execution of Muslim wills in Malaysia.

● In the Hadith narrated by Al-Bukhari and Muslim, it is stated that Prophet Muhammad SAW said, “It is
not permissible for any Muslim who has something for a Will to stay for two nights without his Will
written and ready with him.” Jumhur Ulama mentions that writing a Will in Islam is Muakkad
circumcision (highly recommended).
 DALIL
● When a Muslim dies, his assets will be frozen. In order for an asset to be released, a certain legal
process must be followed.
01
● Without a Will, all recipients must jointly agree on the appointment of an Administrator (the person to
distribute assets accordingly).
02
● Islam recognizes the right of every individual to own property.
03 ● Every individual including husband and wife has the right to own property because the Islamic
marriage bond does not invalidate or limit their rights. Religion sees marital property as a way to
acknowledge property owned by a person based on their efforts to own it.
04
● Allah S.W.T. has said in Surah an- Nisa, verse 32; Which means:
“And do not hope (to obtain) that which Allah has made some of you (make it) superior to others
(regarding wealth, knowledge or power). (This is because) for men it is a share of what they have
earned, and for women it is a share of what they have earned. (And strive) and ask Allah for His
grace. Indeed, Allah is Knower of all things.”
 PROVISION

01

02

03

04
 PROVISION

01

02 ● In Islam, Muslims are encouraged to prepare a Wasiat.

03 ● There are three main methods in the division of assets:

i. Hibah
04 ii. Wasiat
iii. Faraid
 PROVISION
● Hibah is the first instrument in the estate planning components, followed by wasiat and faraid. Hibah
is a voluntary gift giving of one or several subject matters to recipient(s) by owners of wealth during
their lifetime without any consideration or return. From the legal perspective, there are no special laws
01 or acts which are related to Hibah in Malaysia.

● Wasiat is made during the lifetime of testators and the distribution of the estate to beneficiaries
02 (waris) becomes effective only after their death. Only four states have special enactment related Wasiat
which are Selangor, Negeri Sembilan, Melaka and Kelantan. The amount of Wasiat shall not exceed 1/3
of the total amount of the assets. If more than 1/3, the consent of the heirs must be obtained. Adopted
03 children or step children will not be entitled to inherit the assets of their adopted parent or step parent
and non-Muslim family members also will not be entitled to inherit the assets of their Muslim family
members.
04
● Faraid is another Islamic inheritance distribution method to legal heirs after the death of a Muslim
based on the Islamic law. The wife, children, mother, father and relatives concerned are eligible. In
comparison, if you die intestate (without a Wasiat), the distribution of your asset falls in the hands of
the Faraid. In order for the assets to be released, a specific legal process has to be followed. Without a
Wasiat, all beneficiaries will have to jointly agree on the appointment of an Administrator (person to
distribute the asset accordingly).
 FATWA

01

02 Mufti Muhammad ibn Adam

● Importance of Will (Wasiat) to the Muslims

03
● Procedure for Muslim who did not prepare a Will (Wasiat) before his death
04
● Reasons for a Will (Wasiat)
 ARTICLE

BENEFIT OF WASIAT IN ISLAM

01
● A Wasiat is a declaration of a person made during his life time with respect to his
02 property or beneficial interests

03 ● For the purposes of charity or other purposes permissible by Islamic Law, after
his death
04 DISTRIBUTION OF ASSET WITHOUT A WASIAT

The assets of Muslims who die without a Wasiat shall be divided rigidly amongst
their heirs in accordance with Faraid, i.e. the Islamic Law of Inheritance.
 ARTICLE
Who are the legal heirs?

Heirs are specifically identified in Islam. The following main heirs are never excluded from a
01 deceased’s inheritance provided that they are Muslims:

02 ● Husband
● Wives
● Parents
03 ● Legitimate children
Grandchildren, for example, are not automatically regarded as heirs and would only benefit
04 under certain circumstances.

Those not regarded as heirs in Islam include, among others:

● Adopted children
● Illegitimate children
● Foster parents
● Non- Muslim family members
 ARTICLE

Benefit of Writing a Wasiat

01
● Islam permits a Muslim to bequeath one third of his assets via a Wasiat to his loved ones who
are not entitled under Faraid, be they Muslims or otherwise, or for charitable purposes in
02 accordance with Syariah.

03 Muslims, in general, should have a Wasiat in place as it gives, among others it:

i. Gives peace of mind in one’s final days

04 ii. Ensures security and well-being of surviving family members
iii. Enables missed obligations to be fulfilled
iv. Avoids jealousy and resentment amongst surviving family members
v. Enables acts of charity (sadaqah) for rewards after death
vi. Enables the wishes of the deceased to be honoured
 ARTICLE

01

02 Hadith

03 Extract from Sahih Al-Bukhari, Cap 55, Hadith I. Ibn Umar

“It is not permissible for any Muslim who has something to Wasiat to stay for 2 nights
without having his Wasiat written and kept ready with him”.
04
 CASE

01 NCMD v ARC [2019] 4 SHLR 45

FACTS:
02
● This application was made by the applicant i.e. the wife of the deceased to validate the
03 will made by the deceased. The first respondent was the brother of the deceased and
the brother-in-law of the applicant. The deceased passed away on 11 February 2017.
04 Prior to his death, the deceased made a will in writing on 5 August 2011. The deceased
had bequeathed immovable and movable properties to the applicant and his adopted
son, MDHAR. The written will was witnessed by two witnesses from the Amanah Raya,
MSAW and AAA.
 CASE

NCMD v ARC [2019] 4 SHLR 45

01 HELD:

02 ● (1) Since the will was made more than one-third thus the validity of the will must
obtain the consent of other beneficiaries pursuant to s 26(2) of the Muslim Will
(Selangor) Enactment 1999. The deceased's will to the applicant was void due to the
03
absence of consent of other beneficiaries.

04 ● (2) The sum of RM4,317.58 bequeathed to MDHAR did not exceed one-third of the total
assets of the deceased. This will, therefore, was valid in accordance with Islamic law
and in accordance with the provisions of s 26(1) of the Muslim Will (Selangor)
Enactment 1999.
 CONCLUSION

01

02 In conclusion, Wasiat, or Muslim wills, are the testator's wishes regarding the beneficiary's
entitlement to his estate after he passes away. In most Muslim wills, anyone with the power of
disposal and dealings is given authority to carry out the will. It's simply a matter of announcing
03 one's entitlement. The executor's authority to deal with the estate in the form of a trust is
granted by a different type of declaration known as Wisayah, in which the executor is referred to
04 as Wasi and performs the functions of a trustee and guardian in terms of the beneficiary's
welfare and property.
 CONCLUSION

01

02
The benefits of a Muslim will are that it allows the weakest family members to have a larger
share of the estate with the consent of other family members. Outsiders may receive a share of
03 the estate through will without the consent of family members if the entitlement is limited to one
third of the estate, but only with the consent of the heirs if the entitlement is greater than one
04 third of the estate.
 COMMENT

01

02 An understanding of Wasiat in terms of Islamic Law and existing laws in Malaysia should be
made clear to curb the inability to distribute the estate of the deceased. Furthermore, by having
03 an effective Wasiat, the appointed executed will be able to distribute the property appropriately
to the said beneficiaries and the cost of the property division. Therefore, the Wasiat in Islam is
important so that there is no dispute between family members about the distribution of the
04 deceased’s property.
 COMMENT

01

02 Writing a Wasiat is very beneficial because the appointment of an executor through the Wasiat
document will ease the management and administration of an executor after a person’s death.
The appointment of a trusted guardian through a Wasiat will ensure the welfare of under aged
03 children after the death. At the same time, it will also reduce the burden of the heirs who are left
behind. Under Section 5(4) of the Administration of the Religion of Islam (State of Selangor)
04 Enactment 2003, “The Council shall have the power to act as an executor of a Wasiat or as an
administrator of an estate of a deceased person or as a trustee of any trust”.
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THANK YOU