Compiled by:- Majlisul Ulema, South Africa

THE KINDS OF WASIYYAT

There are four kinds of wasiyyat: Wajib, Mustahab, Ja-iz and Haram.

WAJIB WASIYYAT (COMPULSORY)

It is obligatory for a person to make a Wasiyyat if he has liabilities to discharge. He should declare his liabilities verbally to witnesses or reduce these to writing so that rights of others are not plundered or lost after his death. Such liabilities are debt, articles of trust (Amanat) in his possession or any other right owing to others.

It is obligatory for a person to make a Wasiyyat in regard to Fardh Salat, Zakat, Fardh Saum, Kaffarah etc. which he had not discharged. It is a grave sin to refrain from a Wajib Wasiyyat.

MUSTAHAB WASIYYAT (PREFERABLE)

It is Mustahab to make Wasiyyat that the kafan (burial shrouds) and dafan (burial) be in conformity with the Sunnah and that no un-Islamic and bid'ah customs be organized.

If one's assets are considerable, it will then be Mustahab to bequeath any sum up to one third the value of the estate to charitable works, e.g., Musjid, Madrasah, etc. However, if one's estate is not considerable it will not be Mustahab to make a Wasiyyat for charity since such a Wasiyyat will prejudice the heirs. It is more meritorious to leave the entire estate to the heirs if the estate is small and the heirs are needy.

JA-IZ WASIYYAT (PERMISSIBLE)

It is permissible to make Wasiyyat of all things which are permissible, e.g. a certain person should conduct the Janazah Salat, etc.

HARAM WASIYYAT (UNLAWFUL)

It is haram to make wasiyyat of anything which is not permissible in Islam, e.g. to bury one's body in another city; to bequeath wealth to such a person or institution which will utilize the funds in haram activities; making a wasiyyat which interferes in any way whatever with the shares of the heirs.

It is also haram to dispose of one's estate during one's lifetime if the intention is to deprive one's heirs. A man who has no sons sometimes is averse to his brothers or step-brothers inheriting. In such an attitude he-shows displeasure with the decree of Allah Ta'ala. Consequently, he either disposes of his assets in his lifetime or he makes haram bequests to deprive the rightful heirs. This type of transgression will be severely punished in the Akhirah.

A Wasiyyat in favour of a person who has committed murder of the benefactor (i.e. the Musi or the one who makes Wasiyyat) is not valid whether the killing was by design or by error. Example: A man bequeaths a sum of money to his friend Zaid. After the Wasiyyat was made, Zaid kills his friend. The Wasiyyat which was made for Zaid now becomes null and void.

EXECUTING THE WASIYYAT

1. The Wasiyyat will be attended to after payment of the funeral expenses and debts.

A Wasiyyat is executed in one third of the value of the estate. After payment of funeral expenses and debts i.e. in one third of the remaining estate.

The amount of a Wasiyyat in excess of one third is not valid unless voluntarily approved by the adult heirs. The approval of minor heirs is not valid. The excess shall be paid from the shares of only the consenting adult heirs.

If more than one Wasiyyat have been made for an amount in excess of one third and the heirs refuse approval of the excess, the Wajib (compulsory) Wasiyyat will be attended to first. Example: A man made a Wasiyyat of Rs. 10,000 for a Musjid as well as Wasiyyat to pay Rs. 5,000 as Fidyah for his Fardh Salat which he had not discharged. However, after payment of funeral expenses and debts the value of his assets is Rs. 30,000. One third is Rs. 10,000 which is insufficient to execute both Wasiyyats in full, therefore, the Wajib Wasiyyat being the Fidyah of Rs. 5,000 will be paid first and the remaining Rs. 5,000 will be given to the Musjid.

If a third is sufficient for only the Wajib Wasiyyat, the Mustahab Wasiyyat (e.g. for the Musjid) will be cancelled.

When the third is insufficient for execution of more than one Wasiyyat, priority will be accorded to the Wasiyyat of greater importance. Example: Wasiyyat was made to pay the Fidyah for unfulfilled Salat/Saum and unfulfilled Qur'bani. Since Salat/Saum is more important than Qur'bani, payment of the Fidyah of Salat/Saum has priority. Salat and Saum are Fardh whereas Qur'bani is Wajib.

When all the Wasiyyats are of equal category, the Wasiyyat which was made first will be discharged and the others will be cancelled, i.e. if the third cannot accommodate them. Example: Wasiyyat was made to pay the Fidyah of Saum and Fidyah of Salat. Both these are in the same category of importance. Since the third is insufficient, the Fidyah of the Saum will first be paid because the mayyit had made this Wasiyyat first. If there remains anything of the third after payment of the Fidyah of the Saum, it will be used for paying the Fidyah of the Salat.

Example: Wasiyyat was first made to give a sum to the Musjid and a sum to the Madrasah. Both these are in the same category. If the third is insufficient for both, the Wasiyyat for the Musjid will be attended to first because the mayyit had made this Wasiyyat first.

If Wasiyyat was made to perform Hajj, it should be from the mayyit's hometown. If the third is insufficient for the expenses from the mayyit's hometown, the Hajj should be performed from any other place from where the amount of the third will suffice. A person should be appointed at that place to perform the Hajj.

If Wasiyyat of equal amounts were made for two persons and the third is insufficient to execute both Wasiyyats, the third will be equally shared between the two.

If the Wasiyyat of different amounts were made for several persons and the third is insufficient to execute all the Wasiyyats, the third will be distributed among the beneficiaries proportionally.

Example: (i) Rs. l,000 was bequeathed to Zaid, Rs. 2,000 to Amr and Rs. 3,000 to Bakr. However after payment of the mayyit's, funeral expenses and debts there remained only Rs. 9,000. The third of Rs. 3,000 will be distributed among the beneficiaries as follows:

Zaid 1/6 = Rs. 500

Amr 2/6 = Rs. l,000

Bakr 3/6 = Rs. 1.500

= Rs. 3.000

(ii) Rs. 3,000 was bequeathed to Zaid and Rs. 5,000 to Amr. The third is insufficient for both Wasiyyat and the adult heirs refuse to approve of the excess. Therefore, the third will be divided proportionately as follows: Zaid will receive 3/8 of the third and Amr 5/8.

(iii) Rs. l,500 was bequeathed to Zaid and Rs. 500 to Amr. However, after payment of funeral expenses and debts, the value of the remaining assets is Rs. 3,000. One third, therefore, is Rs. 1000 which is insufficient for the Wasiyyats (Rs. 1,500 + Rs. 500 = Rs. 2,000). The Rs. l,000 will, therefore, be shared proportionally by the two beneficiaries as follows:

Zaid's bequest = Rs. l,500

Amr's bequest = Rs. 500

= Rs. 2,000

Zaid's proportionate share = Rs. 1500 x 100
2000 1

= 1500
2

Zaid Rs. 750

Amr Rs. 250

A Wasiyyat in favour of the children will be shared equally by male and female children. Example: The mayyit had bequeathed Rs. 2,000 for the children of Zaid who has two sons and three daughters. Each one of Zaid's children will receive Rs. 400.

If the Wasiyyat stipulates that an item of a specific value be given, it will be permissible to give that value in lieu of the item, e.g. the mayyit had made Wasiyyat that Rs. 500 worth of rice, etc. be given to the poor.

9. It is not binding to execute the Wasiyyat by giving rice, etc. The amount of Rs. 500 in cash could also be given to the poor.

Similarly, if the Wasiyyat stipulates a sum of cash to be given, it is not binding to give the beneficiary cash. The amount may be given in kind as well.

The heirs are not bound to hand over to the beneficiary of the Wasiyyat the specific asset which was bequeathed for him/her, e.g. the mayyit had bequeathed a certain vehicle to his friend Zaid. The heirs are entitled to retain the vehicle and give Zaid the value of the vehicle in cash.

The sum in excess of the amount necessary for the execution of the Wasiyyat is the property of the heirs, e.g. the mayyit had bequeathed R8,000 for Hajj to be performed on his behalf. However, if the Hajj could be performed with R6,000, the excess of R2,000 belongs to the heirs.

The Wasiyyat of a Mayyit who is insolvent shall not be executed because all the assets of the estate belong to the creditors.

If a man says to his debtor: "After my death you are absolved of the money you owe me, this will be in the category of Wasiyyat and the debt up to one third of the value of the estate will be waived.

NOTE:

1. In any Wasiyyat of more then one third the value of the remaining estate, the excess can be executed with the approval of the adult heirs.

The consent of the minor heirs is not valid.

The excess (i.e. more than one third) will be paid from the shares of only those adult heirs who have given their voluntary approval.

The Shariah does not oblige the heirs to approve the excess amount.

REVOKING A WASIYYAT

1. While the Musi (the one making a Wasiyyat) is alive, he has the right of revoking a Wasiyyat he has made. When revoking a Wasiyyat it is essential that the Musi uses such terms which clearly indicate that the Wasiyyat has been revoked, e.g. 'I am revoking this Wasiyyat', 'I am cancelling this Wasiyyat', 'I have cancelled/revoked this Wasiyyat'

The mere denial of the Wasiyyat will not constitute a cancellation. Thus, if the Musi says: 'I don't know anything about the Wasiyyat you are talking about', it will not cancel the Wasiyyat which is confirmed by the testimony of witnesses. If he has no intention of honouring the Wasiyyat, he should revoke it in clear terms.

2. An operation which indicates that the Musi has revoked his wasiyyat, constitutes cancellation of the Wasiyyat, e.g., After having bequeathed a plot of land to Zaid, the Musi erects a building on the spot or sells it. This action constitutes cancellation of the Wasiyat.