Fiqh of Will

Lesson 1

Meaning, Pillar, conditions, wisdom of will, legality & law of will

Meaning of Will

• Will comes from the word ‘wassa’ which means to command, advise, promise of give property after death.
• According to the Syafi’e School of Thought, a will is the giving of a right that can be exercised after the testator’s death,
either it is done verbally or not.
• According to Sheikh Abdul Karim Zaydan, a will is to give property to someone voluntarily which is carried out after the
death of the testator, either things or benefits.
• There is no other definition from some jurists who define a will as a gift by someone to another party whether it is a
thing, a debt or a benefit to be owned by the receiver of the gift after the death of the testator.

Pillar of the Will

There are 4 pillars of the will namely:

1. Testator
2. Beneficiary
3. Bequeathed property
4. Sighah or Pronouncement of Will

Conditions of Testator:

a) Has reached the age of 18 years

b) Has a perfect mind. The insane is not allowed to make the will.
c) The will is done voluntarily and not under coercion.
d) The testator also is not prevented from managing his property.

Conditions of Beneficiary:

a) Beneficiary is known and determined.

b) He also has the ability to receive property which is bequeathed according to shara’. Or in another word, he has the right
to own and manage the bequeathed property according to shara’.
c) Beneficiary is also general whether individuals, welfare organizations or so on.

Conditions of Bequeathed Property:

a) Something that can be made into an inheritance or can be bought and sold during the life of the testator.
b) Something of valuable and transferable after the testator’s death.
c) Something existing in the possession of the testator.
d) Something that should not be used to illegal or immoral activities.
e) Property consists of movable property and immovable property.

Conditions of Sighah:

a) There is a transaction process of pronunciation of the will, consent and acceptance. This consent shall be done after
the testator’s death regardless of whether the beneficiary has agreed or rejected this will before the testator’s death.
b) It can be made through verbally, in writing or gestures conveying the meaning of the will and must continue until the
testator dies.

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Wisdom of Legality of the Will

There are numbers of wisdom behind of legality of the will:

i. Getting closer to God with good deeds through the wealth left behind.
ii. Can add rewards and compensate for deficiencies in worship activities which are performed during life.
iii. Giving birth to gratitude to the favors bestowed by Allah SWT.
iv. Help the needs of the poor and who are not fortunate.
v. Strengthening relations with relatives who do not receive inheritance.

Legality of Wills

Wills are legislated through the Qur’anic text, hadith, the practice of companions and based on consensus or jurists.

i. At the beginning of Islam, a person is ordered to make a will to both parents and the closest relatives as Allah SWT
says in surah al-Baqarah verse 180, which means:

“It is obligatory upon you, when someone among you comes (signs) of death, if he leaves a lot of property, (he
should) make a will for his parents and relatives in a good way (according to religious rules), as an obligation on
pious people”.

However, most of the companions including Abu Bakar, Ali, Ibn Umar, and the four Sunni schools including Syafi’e school, believe
that this obligatory law has been abolished with the revelation of the verses of al-Mawarith that are verses 11,12 and 176 of surah
al-Nisa’. The verses specifically touch on the allocation of the parts that have been set on the heirs in the division of the
inheritance. Therefore, the mandatory order has been abrogated, but the act of will becomes an act that is encouraged and
preferably the will should be for poor families or orphans who are not entitled to inheritance.

ii. The word of Allah SWT, in surah al-Maidah verse 106, which means:

“O you who believe, when one of you is facing death, while he is about to make a will, the let (the will) be
witnessed by two righteous people among you or two people different religions from you, if you are on a journey
ahead the earth and you are in danger of death”.
iii. There are also hadiths that encourage a person to make a will. In a hadith narrated by Ibn Umar that the Prophet
SAW said, which means: “There is no right (should) for a Muslim who has something that can be bequeathed to be
left for two nights unless his will is written on his side”. [Hadith narrated by al-Bukhari and Muslim].

This hadith encourages Muslim to make will taken by writing it because he does not know when his death will come. It is possible
that his negligence may result in all his wishes cannot be fulfilled.

iv. In another hadith, the Prophet SAW said, which means: “The unfortunate person is the person who did not have
time to make a will”. [Hadith narrated by Ibn Majah].
v. In another hadith, the Prophet SAW said, which means: “Whoever dies leaving a will, then he dies on the path of
Islam and follows the Sunnah, and he dies as a person of piety and shahadah and he dies with sins forgiven”.
[Hadith narrated by Ibn Majah].
vi. From the practice of the companions, it shows that they bequeath part of their wealth with the aim of getting closer
to God. According to a narration of Anas RA that he said which means:

"They (companions of the Prophet) wrote in their wills: In the name of Allah, the Merciful and the Merciful. This is
the will of so-and-so son of so-and-so that he testified that there is no God, but Allah and He has no partners. He
also testified that Muhammad is His servant and messenger. He also testified that the Day of Resurrection will

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 surely come, and Allah will raise people from the graves. He bequeathed his remaining family members to fear God
and maintain their relationship with each other. They should obey Allah and His Messenger if they are believers.
He bequeathed them as the will of Prophet Abraham and Prophet Jacob to their descendants..."

vii. In term of consensus, there has been a consensus among Islamic jurists since the days of the companions of that a
will is encouraged to do and it is not narrated that there are those who reject it.

LESS0N 2

Laws related to will, types of will & issues related to will.

Laws related to will

As have been stated earlier, will is a practice that is recommended and encouraged in matters of property and is allowed for other
than heirs. It’s just that in some circumstances, it may become:

a) Mandatory

Mandatory if there is a syariah responsibility that needs to be fulfilled to Allah SWT such as zakat, hajj and so on and he has no
space of time to do them and he is worried that this wealth will be exhausted if it is not bequeathed. The same level of law is also
applicable to human rights such as al- Wadiah property and debts if the real owner is not known by others.

b) Prohibited

A will is illegal according to Islamic law if he bequeaths things that are forbidden to do such as bequeathing alcohol, or
bequeathing something that can pollute the morals of the community. In addition to being illegal, such a will cannot be executed.

Among the will that are prohibited are wills that aim to trouble the heirs and prevent them from receiving the share of faraid set by
the Shariah.

God forbids a will that aims to trouble or harm others. Allah Almighty says in surah an-Nisa’ verse 12 & 13, which means:

“After the will bequeathed by the deceased has been fulfilled and after the debt has been paid, in a state of not causing harm (to
the heirs. Every law is established as) a command from God. God is All-Knowing, yet All-Merciful. (Those laws) are the limits
(laws) of God. Whoever obeys Allah and His Messenger will be admitted by Allah to the heavens beneath which rivers flow, in a
state where they will remain therein. That's a big (real) success.”

c) Permissible

A will becomes permissible if it is made to a rich person either from relatives or any party without having a specific purpose. If the
will is intended to do good and connect the bonds of friendship, then the will is recommended.

d) Disliked or Makruh

A will is makruh if the testator is a poor person and has heirs who are poor and in need of property. A will is also makruh if it is
given to a wicked and evil person, the testator feels that there is a high possibility that this property will be used for evil.

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Types of will

The will is divided into 3 types, namely absolute wills, conditional will and general will.

1. Absolute Will

An absolute will is a will that is made freely or is not bound by certain conditions imposed on the bequeathed property that may be
placed by the testator. Therefore, according to the Syafi’e and Hanbali sects, the effect of this absolute will is that it will be in
effect forever.

2. Conditional Will

A conditional will is a will that contains certain conditions imposed by the testator. The jurists are of the opinion that the
conditions placed in the will are valid as long as it does not contravene the Shariah either from the point of view of property,
purpose or way of doing the imposed conditions and the will should bring good to the receiver, the testator or others. Therefore, a
will that has valid conditions will bind the recipient and it is up to the recipient of the will to either accept the will with the
conditions or reject the will.

If the conditions contained in this conditional will is valid in syariah but is not fulfilled by the recipient of the will, then the effect is
that the will becomes null and void.

3. General Will

A general will is a will made in a general form such as to the residents of a village or town. A will in such a form includes all
members of the population of the place, whether Muslim or non-believers. As for the minimum number of recipients of a general
will addressed to a large group such as the residents of a place, it is sufficient to have three people representing the large group
according to Imam Syafie's opinion. However, there is a difference of opinion among the jurists of the Hanafi school where Abu
Yusuf says it is sufficient if the will is given to one of the large groups, while Muhammad Hassan al- Shaybani states that it should
be given to at least two of them.

If the testator states that the recipient of the will is not clear, that is, only in general, such as bequeathing to the poor, then
according to Imam Syafie's opinion, the bequeathed property should be used for the benefit of the poor where the property is
located. The bequeathed property can be given to another nearby district or state if the property is too much and the people in
that area receive an adequate and sufficient share for their living needs.

The issues relate to will

There are some issues relate to will. Such issues are:

i. To whom wills should be made: The will should be made in priority to poor, orphan, adopted child, nursing child,
mosque, welfare organization, oppressed group and so on.
ii. The rate of the will: The rate of property that can be bequeathed by the testator according to the provisions of
shara’ is limited to only 1/3 of the entire property left at the time of his death after being used for funeral expenses
and payment of his debts.

This is based on the hadith of the Prophet SAW which means:

"Sa'ad bin Abu Waqqas r.a said: Rasulullah s.a.w visited me when I was sick. I said: "O Messenger of Allah, can I bequeath all my
property?" His Majesty replied: "No way." I said: "Half." His Majesty replied: "No way." I said: "A third." His Majesty replied: "Yes,
one- third, but this rate is too much. It is better that you leave your heirs rich than that you leave them poor, begging people with
their hands." (Narrated by al-Bukhari and Muslim)

It is narrated that Abu Bakar al-Siddiq RA and Ali bin Abu Talib RA bequeathed only 1/5 of their property. It is narrated that Umar
bin al- Khattab RA bequeathed 1/4 of her property.

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A will that exceeds the rate of 1/3 of the testator's property is invalid unless the heirs agree to proceed it.

If the testator has no heirs, then according to the Hanafi school of thought, a will that exceeds 1/3 of the property is valid. But
according to the opinion of majority of scholars, a will that exceeds the rate of 1/3 is absolutely invalid.

The positive effect of bequeathing only 1/3 of the testator's estate is to preserve the welfare of the testator's heirs who are
entitled to the estate. This is because it is possible that either knowingly or unknowingly the testator will deny his inheritance to
the rightful heirs by giving up all his property or reducing their share to the extent of affecting their share rate.

iii. Will to heirs:

Majority of jurists are of the opinion that a will to an heir is not allowed, and a will is only valid to be made to non-heirs who do not
entitle to receive a share of the property under faraid rules. Based on this view, the legal origin of a will to an heir is invalid unless
other heirs agree to the will made when the testator died. Thus, the execution of the will to the heirs is dependent on the consent
and permission of the other heirs. This law is based on a hadith from Abdullah bin 'Abbas RA that the Prophet SAW said:

Which means: “It is not permissible to make a will to an heir unless it is permitted by the other heir”. [Narrated by Abu Dawud].

Therefore, a will made to an heir is not valid unless agreed by the other heirs after the death of the testator.

iv. Cancelation of the will: A will can be void. The following matter turns the will to be null:
a. If beneficiary or the person who is given a will kills the person who gave him the will directly and such
murder is forbidden in the sight of shara’. This is view of Imam Abu Yusuf.
b. A receiver of will has died before a testator.
c. When the item of bequeath was damaged before it was received by the beneficiary or the bequeathed
person.

The last three above matters were mentioned by Sheikh Sayyid Sabiq in his book Fiqh al-Sunnah.

v. The beneficiary dies before the testator:

All four sects agree that a will is void due to the death of the beneficiary before the testator dies. This is because a will can only
take place after the death of the testator and the recipient of the will accepts the will.

Likewise, a will is void if the beneficiary dies after the death of the testator, while the beneficiary has not yet received it. This is
the opinion of the majority of scholars.

vi. Rejection of will: A will is void if the recipient of the will refuses or does not want to accept it after the death of the
testator.
vii. The beneficiary kills the testator:

According to the Hanafi and Hanbali schools of thought, a will to a murderer is null and void, whether the killing occurred b efore
the will was made, such as when someone injured another person with the intention of killing him, then before he died, he
bequeathed his property to the person who injured him, or after the will was made, although allowed by the heirs but the will is
still void. This is because they analogies inheritance barriers with wills. As known that the murder causes the invalidation of
inheritance.

However, the schools of Syafi’e and Maliki hold that the will is not void even if the killing is intentional or aimed at hastening the
death of the testator so that he gets the bequeathed property immediately. This is because a will is a prosses changing of
ownership. Then, it is different from inheritance.

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