Compiled by:- Majlisul Ulema, South Africa

WASIYYAT

A bequest made by a person for part of his wealth to be contributed after his death to a person or institution is termed Wasiyyat.

The Shariah permits a Wasiyyat of one third or less of a man's estate. It is not permissible to make a Wasiyyat of more than one third. The amount in excess of a third of the value of the estate is not valid.

The following acts of a person come within the classification of Wasiyyat:

Contributions made during Maradhul Maut, e.g. gifts, waiving debt, charity.

Relating any disbursement or contribution of wealth to his inaut (death), e.g. a sum should be contributed to a Musjid, Madrasah, etc. or a certain amount should be given to a non-heir or a specific sum should be spent on feeding the poor, etc.

Payment of Fidyah (compensation) for Salat, Saum and Hajj which were not executed during the lifetime of the deceased.

Payment of Kaffarah (penalty) for violated oaths, fasts, etc.

MASA’IL

When a man makes a Wasiyyat, it devolves as an incumbent duty on the heirs to execute the Wasiyyat. The obligation of fulfilling the mayyit's Wasiyyat is incumbent only up to one third the value of the total assets in the estate. It is not incumbent to pay the amount in excess of one third, e.g. the mayyit had made Wasiyyat for Rs 5,000 to be contributed to a Musjid. However, the total value of his estate is Rs 9,000. Thus only Rs 3,000 will be given to the Musjid.

If all the heirs voluntarily accede to execute the full Wasiyyat even in excess of one third, it will be permissible. However, the consent of minor heirs is not valid. Hence, nothing may be taken from their shares for payment towards the excess.

The 'third' in this context refers to one third of the value of the estate's assets after payment of funeral expenses and debts.

The consent of an adult heir who is absent cannot be assumed. Hence, nothing may be taken from the absent heir's share for the execution of the excess Wasiyyat.

When requesting the consent of an absent heir, it is essential to furnish full details of the Wasiyyat and the amount. His consent without him having been informed of the details of the Wasiyyat is not valid.

Only the consent which heirs give after the death of their Murith is valid. If during the lifetime of the mayyit the heirs had consented to a Wasiyyat more than a third, but withdrew such consent after the death of the murith, then the initial consent will be invalid.

When a person has neither heirs nor creditors and he makes a Wasiyyat for all his wealth to be contributed as he directs, then such a Wasiyyat will be valid.

The Wasiyyat will be valid only if the Musi (the one who makes the bequest) is sane and an adult.

The Wasiyyat will be discharged only if there are assets after payment of funeral expenses and debts.

The Wasiyyat will remain valid even if the beneficiary of the Wasiyyat dies before he accepts the benefit of the Wasiyyat. The Wasiyyat amount will be paid to the heirs of the beneficiary. The essential condition is that the beneficiary should be alive at the time the Wasiyyat is made in his favour. Thus, if a Wasiyyat is made in favour of a deceased person, the amount will not be paid to the heirs of the deceased in whose favour the Wasiyyat was made since such a Wasiyyat is not valid.

The subject of Wasiyyat should be an object or a right which can be owned, e.g. a fixed property, a vehicle, garments or the right to live in a house for a specific time, e.g. 5 years. If a right (i.e. a right which is valid in the Shariah) is bequeathed, the asset (e.g. house) will remain the property of the heirs while the beneficiary of the Wasiyyat will enjoy the right of occupying the house for whatever time specified in the Wasiyyat.

A Wasiyyat in favour of an heir is not valid. However, if all the adult heirs uphold the Wasiyyat it will be valid. But, nothing will be taken from the shares of minor heirs to fulfil the Wasiyyat in excess of one third which the adult heirs have accepted to uphold.

A Wasiyyat is not valid for such a person who happens to be an heir on the death of the murith. Sometimes a person becomes an heir in the absence of a closer heir, e.g. a grandson (son's son). If a man is survived by a grandson and no sons of his own, the grandson will become an heir. But, if a son is living, the grandson will not inherit. Thus, if at the time of the Murith's death the person is not an heir, the Wasiyyat in his favour will be valid. Another example is a brother who is not an heir if tne mayyit is survived by either his father or sons. A Wasiyyat in favour of a brother will, therefore, be valid. However, if the mayyit has no father, sons or grandsons (i.e. son's son), then the brother will be a heir, hence a Wasiyyat for him will not be valid.

A Wasiyyat for a non-Muslim is valid although there are no ties of inheritance between Muslims and non-Muslims.

The beneficiary of the Wasiyyat is termed Musa Lahu. Both the acceptance and rejection of a Wasiyyat during the lifetime of the Musi (the one who makes the Wasiyyat) are not valid. The Musa Lahu's acceptance or rejection is valid only after the death of the Musi.

HUJUB (Deprivation)

Heirs are sometimes deprived of inheritance, not because of any defect or impediment in themselves, but on account of the presence of others who may be heirs inheriting or non-inheriting heirs. This deprivation as the result of the presence of others is termed Hujub.

There are two types of Hujub - Hujub Nuqsan and Hujub Hirman.

Hujub Nuqsan

In this type, the heirs are partially deprived. On account of the presence of certain relatives, the shares of heirs decrease. The following are the heirs who suffer Hujub Nuqsan.

Mother: The mother's share is reduced from one third to one sixth if the mayyit is survived by also sons, daughters, or grandchildren. Grandchildren in this context refers to son's children.

The mother's share is likewise reduced to one sixth if there happens to be more than one brother or sister of the mayyit, even if in certain circumstances the brothers and sisters do not inherit.

The mother's share is also reduced if the mayyit is survived by his father and wife or by her father and husband. In this case there are no children. Instead of obtaining one third of the estate, she will receive one third of the balance remaining after subtracting the husband's/wife's share. This will be further explained, Insha'Allah.

Husband: In the presence of the wife's children or grandchildren (i.e. son's children), the husband's share decreases from one half to one quarter.

Wife: In the presence of the husband's children or grandchildren (i.e. son's children), the wife's share decreases from one quarter to one eighth.

Grand-daughter (Son's Daughter): If the mayyit has one daughter and one grand-daughter, the latter's share decreases from one half to one sixth because of the presence of the daughter.

Al-lati Sister: In the presence of a true sister, an Al-lati sister's share decreases from one half to one sixth.

Types of relationship between brothers and sisters

There are three types of brothers and sisters. These are known as Haqeeqi, Al-lati and Akhyafi. Haqeeqi are true or full brothers and sisters, i.e. children of the same mother and father. Al-lati are children of one father and different mothers. Akhyafi are children of one mother and different fathers. Such brothers and sisters are termed Akhyafi.

Hujub Hirman

Hujub Hirman is the total deprivation of an heir from inheritance. The following persons suffer Hujub Hirman:

Akhyafi brothers and sisters: These are totally deprived if the mayyit leaves behind sons or daughters or grandchildren (son's children) or father or paternal grandfather.

Grandchildren (son’s children): These are deprived in the presence of a son.

Great grandchildren (sons-sons children): These are deprived in the presence of a grandson.

Granddaughter (son’s daughter): The granddaughter is deprived if the mayyit leaves behind two daughters.

Parental and maternal grandmothers: All of these are deprived in the presence of the mayyit's mother.

Parental grandmother: She is deprived in the presence of the mayyit's father.

Brothers and sisters: All of these, be they Haqeeqi, Al-lati or Akhyafi, are deprived if the mayyit is survived by children or grandchildren (son's children) or a father or grandfather.

Al-lati sister: She is deprived if the mayyit leaves two Haqeeqi sisters or one Haqeeqi brother on condition she is not an Asbah (this will be explained in the section dealing with Al-lati sisters, Insha'Allah).

Parental grandfather: He is deprived in the presence of the mayyit's father.

Brother’s son: They are deprived in the presence of the mayyit's father or brother or son or grandson (son's son).

Paternal uncle: He is deprived in the presence of the mayyit's father or grandfather or great grandfather or son or grandson or brother or brother's son.

The following relatives are not heirs. They will inherit only if a Wasiyyat is made for them.

1. There are no ties of inheritance between a stepmother/stepfather and her/his stepchildren.

Examples:

a. A woman's children from a previous marriage will not inherit in the estate of her other husband (i.e. the children's stepfather). Similarly, this stepfather will not inherit in the estates of his stepchildren.

b. A man's children from one wife will not inherit in the estate of their father's other wives (i.e. their stepmothers). Similarly, their stepmothers will not inherit in their estates.

c. The relatives of the husband do not inherit in the estate of his wife nor do the relatives of the wife inherit in the estate of her husband.

d. Zina (fornication/adultery) does not create ties of inheritance. Thus, an illegitimate child will not inherit in the estate of its biological father nor will such a man inherit in the estates of his illegitimate offspring. Such children will, however, inherit in their mother's estates and their mother will
inherit in their estates. They will also inherit from one another. The will also inherit in the estates of their mother's other children who are legitimate.

Adoption

Adoption does not bring about any of the ties and effects created by blood-relationship. Adopted children do not inherit in the estates of their foster parents nor do these parents inherit in the estates of their adopted children Ho ever, a Wasiyyat may be made for adopted children and foster parents.

It should be remembered that the rules of Purdah/Hijab apply fully to adopted children.

An estranged wife

A wife who is estranged from her husband will inherit in his estate as long as she remains in his nikah regardless of whose fault the cause of the estrangement is. Whether she was expelled from the marital home by the husband or whether she wilfully abandoned the home, she will remain an heir in her husband's estate as long as she remains in his nikah even if the separation endured for a lifetime.

The children which an estranged wife begets by way of adultery will be considered to be the legitimate children of her husband. As such,, they will inherit in his estate and he in their estates.

Since the mother of such ill-conceived offspring is in the nikah of her husband, these children are regarded as legitimate by the Shariah even if the woman has not been living with her husband for years and her illicit affairs with other men are common knowledge.

The husband should understand that it is not proper to refuse talaq to a woman on account of his desire to spite and punish her. In the end this dishonourable attitude rebounds on him. He will share the blame for her misconduct. Furthermore children which she begets by way of adultery will bear his name. They have equal rights with his true children. Therefore, if there is no hope of reconciliation the man should honourably set the woman free by means of talaq. As Allah Ta'ala commands in the Qur'an Majeed:

"Maintain (her) beautifully or set (her) free with kindness."