Wills and Inheritance

source :Osoul Global Center

A will is an amount of inheritance to be distributed according to a sane testator desire and preferred not to exceed one third of the sum and to exclude the heirs, and to be distributed after paying all debts.

Wills and Inheritance

Wasiyyah, i.e. a will, according to Islam means bequeathing ownership after one’s death in a voluntary way.[1] Qur’anic and hadith texts, as well as the unanimous view of scholars, make clear that making a will is perfectly legitimate.[2]

Making a will is recommended, even though one may be in very sound health, as death may occur unexpectedly and all of a sudden. To make a will is not an obligation except for one who has an outstanding debt, or one holding something that belongs to another person, or has a duty. In these cases, a will is a duty so that the person concerned ensures that what he owes to others should be delivered after one’s death. Allah makes it a duty of Muslims to deliver to their owners anything they hold in trust.[3]

Types of wills:

1- Obligatory: A will to ensure the repayment of debts and return things held in trust;

2- Recommended: A will made in favour of relatives who are not heirs and for charitable purposes;

3- Reprehensible: A will made in favour of people who indulge in sin;

4- Forbidden: A will created for a forbidden purpose, such as building a temple. A will is also forbidden if it amounts to harming any of one’s heirs.

5- Permissible: A will made in favour of relatives and non-relatives who are well off.

A will is deemed to have been made in one of three ways: a verbal statement, a written document, and a clear signal.

Conditions

 The testator must be a person who is qualified to make a donation, by being an adult of sound mind. There are, however, two exceptions: a young testator who makes a will regarding his own funeral and burial, as long as this is within what is reasonable, and a weak-minded person making a will for charitable purposes, such as teaching the Qur’an or building a hospital.

The beneficiary of one’s will must not be an heir of the testator. The Prophet (peace be upon him) says: ‘No will may be made in favour of an heir.’ If the beneficiary kills the testator, the will is rendered invalid.

The maximum amount a person can bequeath by will is one-third of his or her estate. It is preferable to make it less than one-third. If the estate is small, it is better that no will is made, so that the whole estate goes to the heirs.

Invalidity

A will becomes invalid if any of its conditions is not met. It is also invalid if the testator goes totally insane and his insanity continues until death. It is also invalid if the beneficiary dies before the testator, or if what is bequeathed is a certain object that perishes before the beneficiary takes possession of it.

references

  1. Ibn Abidin, Al-Durr al-Mukhtar, vol. 6, p. 648.
  2. Ibn Qudamah, Al-Mughni, vol. 8, p. 390.
  3. Al-Zuhaili, Al-Fiqh al-Islami, vol. 10, p. 7,443.

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