2- THE BEQUEST’S EXECUTOR
THE BEQUEST’S EXECUTOR
(Appointing an executor means for X to put Y in charge of his property and young children, bequests, paying his debts. or collecting his property from others. The verbal form is. “I appoint So-and-so to execute such and such a bequest. “)
The necessary conditions for the validity of X appointing Y as the executor of his bequest are that Y be:
a) legally responsible (mukallaf);
b) upright (meaning the uprightness of Islam, as it is not valid under any circumstances for Y to be a non-Muslim if X is a Muslim);
c) and that Y have the knowledge and capacity to properly undertake the bequest.
The following examples of X appointing Y as the executor of his bequest are legally valid:
1. when X appoints Y as his executor at a time when Y is not legally eligible to be it, but by the time of X’s death, Y is eligible (by fulfilling all the above conditions);
2. when X appoints a group of two or more people as his executors (and if he does so, then if he does not stipulate that each of them must manage their respective role, but rather says that they are to manage the legacy collectively, or does not say anything, then they must cooperate and not manage the work, maintenance, and dealings as separate individuals. Cooperate in such a case means that their acts proceed from the decision of the group, and does not mean, for example, that when they buy something, they must all conduct the transaction together. Rather, if all agree to permit something, it is sufficient for one of them to take the matter in hand and carry it out);
3. when X appoints (for example,) W, and then after him, Y (or vice versa) (saying, “I appoint W as executor until Y comes, but when Y arrives, he is the executor,” or “I make W executor for one year, and when it has passed, then Y is the executor”);
4. or when X appoints Y as executor. authorizing him to appoint in tum whomever he chooses as executor of the bequest (if the person fulfills the conditions).
‘X’s appointing Y as the executor of his bequest is not legally effective until Y accepts this responsibility after X’s death, even if this acceptance is not immediately thereafter.
Both X and Yare entitled to cancel the appointment of Y as executor of the bequest whenever they wish (unless (after X’s death) Y feels it almost certain that the property will be lost through a wrongdoer appropriating it, in which case Y may not withdraw as executor, meaning it is unlawful for him to do so. In such a case, if Y withdraws of his own choice, he is not thereby free of having to execute the bequest, though he is not obliged to continue therein without remuneration, but does so for a fee.)
It is not legally valid to appoint an executor unless the bequest consists of some good work or pious act such as paying off a debt, making up a hajj, looking after the welfare of one’s children, and so forth (excluding actions that are not dispositions of property, such as marrying off the children) (and excluding acts of disobedience.
When X’s father is still alive and fit for guardianship, X may not appoint Y to look after the welfare of his children.
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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