CHAPTER 2: WRITING THE WILL
Definition
Will — Wasiyyah
The Arabic word for “will” is “wasiyyah”. It means a “definite command or obligation”.
Thus, in regard to fearing and obeying Him, Allah (swt) gives the wasiyyah:
‘’Verily, we have commanded the people of the Scripture before you, and you (Muslims) that you all revere Allah.’’ (An-Nisa 4:131.)
In regard to treating the parents with kindness and benevolence, Allah gives the following wasiyyah in various places of His Book:
‘’We commanded the human being to be kind and dutiful to his parents.’’ (Al-Ankabut 29:8.)
‘’We commanded the human being to be kind and dutiful to his parents.’’ (Al-Ahqaf 46:15.)
‘’We have commanded the human being (to be dutiful) in regard to his parents. His mother bore him in weakness and hardship over weakness and hardships.’’ (Luqman 31:14.)
In regard to adhering to Allah’s commands and abstaining from what He prohibited, Allah (swt) tells his Messenger (pbuh):
‘’Say (O Muhammad), “Come, I will recite what your Lord has prohibited for you: Do not join anything in worship with Him, …’’ (Al-An’am 6:151)
In that and the following two ayat, Allah (swt) concludes the listed prohibitions and commands by declaring that this is His wasiyyah:
‘’… This He has commanded you, that you may use reason.’’ (Al-An’am 6:151)
‘’… This He has commanded you, that you may remember.’’ (Al-An’am 6:152)
‘’… This He has commanded you, that you may have taqwa.’’ (Al-An’am 6:153)
After ordaining the shares of the estate for the spouses and maternal siblings, Allah says that this is His wasiyyah:
‘’This is a commandment from Allah; and Allah is ever Knowing and Tolerant.’’ (An-Nisa 4:12)
And Allah (swt) indicates that the true believers are those who give each other the wasiyyah of adhering to truth and perseverance:
‘’By time, the human being is verily in loss — except for those who believe and do righteous deeds, and command each other to truth and command each other to patience.’’ (Al-’Asr 103:1-3)
Command at the Time of Death
Wasiyyah also means a command given by a person who is about to die, in order to be executed after his death. Ibrahim (pbuh), as well as his grandson Ya’qub (pbuh), gave the following important wasiyyah to their sons:
‘’And Ibrahim commanded this sons with that (submission to Allah), and so did Ya’qub, “O my sons, Allah has surely chosen for you this religion, so do not die except as Muslims.”’’ (Al-Baqarah 2:132)
Shari Meaning
In the legal language of the Islamic shar (legislations), a will is a set of instructions given by a person to individuals whom he expects to survive him. It includes Islamic instructions and admonishments, monetary distributions, and assignments of rights.
In this sense of wasiyyah, Allah (swt) says:
‘’… When death approaches any of you and he is leaving wealth, that he makes fair bequests …’’ (Al-Baqarah 2:180)
‘’… After payment of any bequeathal that he may have made, or debts …’’(Al-Baqarah 2:180.)
‘’ … After payment of any bequeathal that they (your wives) had made, or debts …’’ (An-Nisa 4:12.)
‘’… After payment of any bequeathal that you had made, or debts …’’ (An-Nisa 4:12)
‘’… After payment of any bequeathal that had been made, or debts that are not intended to cause harm.’’ (An-Nisa 4:12)
‘’O you who believe! When death approaches one of you, testimony should be taken among you at the time of bequest by two just men of your own.’’ (Al-Maidah 5:106)
The Obligation of Writing the Will
Since no one knows when or where death will come to him, one must hasten to write his will. Allah’s Messenger (pbuh) indicates that this is an obligation for everyone who has anything worth bequeathing.
Ibn ‘Umar reported that the Prophet (pbuh) said:
‘It is not rightful for a Muslim person, if he has anything to bequeath, that he sleeps two consecutive nights without having his will written with him.’
Ibn ‘Umar then noted, “Not even one night has passed me, ever since I heard this from the Prophet (pbuh), without having my will with me.’’ (Recorded by al-Bukhari, Muslim, and others.)
This is most important if one owes dues to Allah (swt) or His ‘ibad (servants) that may not be fulfilled without a will. Also, this obligation is further emphasized in situations where one approaches a dangerous undertaking, such as a fight, risky journey, or severe illness.
People Benefitting from a Bequeathal
The will is an important means of helping the relatives and other individuals. The standard legal heirs may not receive any additional allocation through bequeathal, but others may. In fact, it is recommended to bequeath to the needy relatives, especially if one is leaving a large wealth.
Standard Heirs
It is prohibited to bequeath anything to the Islamic legal heirs, because Allah has already appointed to them their rightful shares of the inheritance.
However, one may include special clauses in his will to assure that they receive their correct legal shares according to Islam. This is especially important in countries where the Islamic law of inheritance is not applicable.
Abu Umamah al-Bahili and others reported that the Messenger (pbuh) said in a khutbah in his Farewell Pilgrimage:
‘Allah has appointed for everyone his due right; thus no bequest may be made to a (standard) heir. And a woman may not spend anything from her house without her husband’s permission.’
Someone asked, “O Allah’s Messenger! Not even food?” He replied, <That is our best type of wealth.> He then continued:
‘A borrowed thing must be guaranteed (to be returned), a thing lent for a benefit (like a goat’s milk) must be returned, a debt must be paid off, and a guarantor is responsible (for whatever he guaranteed).’ (Recorded by Abu Dawud, Ibn Majah, and others. Verified to be authentic by al- Albani (Sahih Abi Dawud no. 3044).)
Many other companions also reported from Allah’s Messenger (pbuh) that:
‘No bequest may be made to a (standard) heir.’ (Recorded by Ahmad, Abu Dawud, at-Tirmidhi, and others from Ibn ‘Abbas, Anas, Jabir, ‘Abdullah Bin ‘Umar, ‘Ali, and others (pbut). Verified to be authentic by al- Albani (Irwa’ ul-Ghalil no. 1655).)
THE RELATIVES
It is recommended to bequeath to non-heir relatives — the closest then the closer. The bequests are taken out of the inheritance before dividing the rest among the legal heirs. Allah (swt) says:
‘’It is ordained for you, when death approaches any of you and he is leaving wealth, that he makes fair bequests in favor of the parents and near relatives — a duty upon those who have taqwa.’’ (Al-Baqarah 2:180)
According to Ibn ‘Abbas and many others among the sahabah and tabi’un, the part of this ayah pertaining to the parents has been abrogated by the ayat of inheritance (See next chapter.). But the part pertaining to the non-inheriting relatives continues to hold. (Tafsir Ibn Kathir.)
NON-MUSLIM RELATIVES
A disbeliever cannot be an heir for a Muslim (See next chapter). What if a Muslim has a non-Muslim wife or mother? The will provides an important avenue for him to support such individuals after his death.
OTHER BENEFICIARIES
One may also direct a part of his estate to other unrelated individuals or institutions as he sees fit and pleasing to Allah — not intending thereby to inflict harm on the legal heirs.
Maximum Bequeathal
Sa‘d Bin Abi Waqqas narrated that he was with Allah’s Messenger (pbuh) in the Farewell Pilgrimage. He was struck by a severe illness in Makkah, and felt that he was close to death. The Messenger (pbuh) visited him, and he said to him, “O Messenger of Allah, I am reduced to this state because of illness. I have vast wealth, and no heirs except a daughter. Should I bequeath two thirds of my estate?” He (pbuh) replied, <No!> He said, “One half of my wealth then?” He (pbuh) replied, <No!> He said, “One third of my wealth then?” He (pbuh) said:
<Yes, one third; and even one third is too much. Indeed, O Sad, you’d better leave your inheritors rich after you than leave them as a burden, begging people (and he (pbuh) expressed this with a motion of his hand).
Indeed, O Sa’d, you will never spend money seeking by it Allah’s Face, but you will be rewarded for it — even for the morsel of food that you put into your wife’s mouth.
And if you live after me, never would you do a good deed seeking thereby Allah’s Face, but will increase by it in position and elevation. Furthermore, you may live longer so that some people (the Muslims) will benefit from you and others (the disbelievers) will be harmed.
O Allah, fulfill my companions’ Hijrah, and do not turn them back upon their heels. But the miserable one was Sa’d Bin Khawlah (Allah’s Messenger (pbuh) is regretting for him that he died in Makkah before Hijrah.).> (Al-Bukhari, Muslim, and others.)
To this, Ibn ‘Abbas said:
“I wish that people would reduce their bequests from one-third to one-fourth, because the Prophet (pbuh) said that even one-third is too much.” (Al-Bukhari, Muslim, and others.)
Among the things that we learn from the above hadith are the following:
1. The most that one may bequeath in his will is one-third of the entire estate, but it is better not to exceed one-fourth.
2. If one maintains a sincere intention of pleasing Allah through helping the individual to whom he bequeaths, his bequeathal will count as a sadaqah that will benefit him after death.
3. The inheritance is a means that Allah made for supporting one’s nearest kin. One should not rob them of this right or cause them to fall into poverty after him.
4. The amounts and shares of the estate that go to the children, spouses, parents, siblings, or further relatives have been ordained by Allah the Most Wise. One may not challenge that by proposing alternative shares that seem more reasonable to him — thereby imposing his limited knowledge and experience over the unbounded knowledge and wisdom of Allah (swt).
Witnesses
One should have two just Muslim men witness his will. If this is not possible, then two non-Muslim men may be taken as witnesses, provided that their testimony is validated as explained in the Quran:
«O you who believe! When death approaches one of you, testimony should be taken among you at the time of bequest by two just men of your own.
If you are traveling through the land, and the calamity of death befalls you, then (this may be performed by) two men from other than your own. Detain them both after the prayer and, if you are in doubt, let them swear by Allah (saying), “We wish not for any worldly gain in this, even if it be (to please) a near relative, neither will we conceal any of what we have witnessed before Allah, for then indeed we would be of the sinful.”
But if afterward it is found that these two were guilty of sin (perjury), let two others stand in their place from among those who were deprived of their right by the first two. They will swear by Allah (saying), “We affirm that our testimony is truer than theirs, and we have not transgressed. Indeed we would then be of the wrongdoers.”
Thus it will be more likely that they will give testimony in the proper way, or (at least) fear that their oaths will be refuted by the oaths of others. Revere Allah and listen (with obedience to Him). Indeed, Allah does not guide the disobedient folk.» (Al-Maidah 5:106-108.)
We learn from the above ayat the following:
1. A will is acceptable even when one is at the verge of death.
2. Two just (“Just” means that they are of known truthfulness and righteousness.) men should be present and witness one’s verbal or written will. Thereafter, they should supervise the division of the estate.
3. The two men should normally be Muslim, preferably from the same clan or tribe as the deceased.
4. If no Muslims are present, such as if the deceased was travelling through the land when death came to him, non-Muslim men will be appointed as the witnesses.
5. The witnesses must swear by Allah that they will divide the estate as directed by the deceased, without being influenced by anyone or desirous of any worldly gain from that.
6. If there is a doubt that the witnesses breached their sworn promise, they should be replaced by two other witnesses from the side of the people who claim that their rights were violated.
Unfair Bequests
ALLAH IS THE ONE WHO ORDAINS THE SHARES
Allah (swt) has ordained the various individuals’ shares from the inheritance. Their shares increase or decrease based on their relationship to the deceased and other considerations, as will be detailed in the next chapter. Allah (swt) says:
«For men is a share of what the parents and close relatives leave, and for women is a share of what the parents and close relatives leave, be it little or much — an ordained share (by Allah).» (An-Nisa 4:7.)
Therefore, it is prohibited to change the ordained shares, or use the will as a means of causing harm or oppression, such as depriving some of the heirs from their rightful share, or favoring some of them over others.
Even if an heir had wronged the testator or appears to be of evil conduct, that is not a justification for denying him his share of the estate.
Non-Islamic countries allow the testator full liberty in dividing his estate. But one may not take that as an excuse to disobey his Lord. He should fear Allah’s punishment and strive to remain within Allah’s ordained limits.
THE BEQUEST MAY NOT BE USED AS A TOOL OF OPPRESSION
Some people include fictitious bequeathals and debts in order to deprive the heirs of their rightful shares. This constitutes many violations to Islam, including the following:
1. As we saw above, this would mean opposing Allah’s ordainment.
2. It violates Allah’s (swt) explicit prohibition of causing harm to the heirs. Allah (swt) says:
«(The allocations are made) after deducting any bequest that may have been made, or any debt (that may have been incurred), neither of which having been intended to harm (the heirs).» (An-Nisa 4:12)
3. It violates Allah’s Messenger’s (pbuh) general prohibition of inflicting harm in any manner or form. Abu Sa’id al-Khudri narrated that the Prophet (pbuh) said:
<(One may) neither initiate harm (toward others), nor respond (to their actions) by harming (them). Whoever harms others, Allah will harm him; and whoever troubles others, Allah will trouble him.> (Recorded by ad-Daraqutni, al-Hakim, and others. Verified to be hasan by al-Albani and others (Irwa‘ ul-Ghalil no. 896, as-Sahihah no. 250, Ahkam ul-Janaiz p. 16).)
4. It violates Allah’s general command to the believers to be fair, even toward those whom they hate:
«O you who believe, stand out firm for Allah, and be just witnesses. Do not let the enmity and hatred of others prevent you from being just. Be just; that is nearer to piety. And revere Allah; indeed, Allah is well acquainted with what you do.» (Al-Maidah 5:8.)
5. It violates Allah’s Messenger’s (pbuh) prohibition of cheating.
Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
<Whoever cheats is not one of us.> (Recorded by Muslim and at-Tirmithi)
Ibn Masud reported that Allah’s Messenger (pbuh) said:
<Whoever cheats us is not one of us. Chicanery and deception are (punished) in the Fire> (Recorded by at-Tabarani, Ibn Hibban, and others. Verified to be authentic by al- Albani (as-Sahihah no. 1058).)
VOID PARTS
Under the Islamic law, any part of a bequeathal that is unjust or wrong is voided and rejected. ‘A’ishah reported that the Prophet (pbuh) said:
<Anyone who innovates in this matter of ours (Islam) that which is not of it, it is rejected.> (Recorded by al-Bukhari, Muslim, and others.)
‘Imran Bin Husayn narrated that a man freed six slaves, which were all what he possessed, just before he died. His bedouin heirs came to the Prophet (pbuh) complaining about that, upon which he (pbuh) said:
<Did he really do that? Had we known, we would not have performed the prayer for him — if Allah willed.>
He then divided the six slaves into three pairs, draw lots among them, freed only one pair (That corresponds to one-third of the estate in this case.), and gave back the other four to the heirs. (Recorded by Ahmad, Muslim, and others.)
ATTEMPTING TO STOP THE INJUSTICE
Anyone who is able to stop the injustice must do so. This is specifically required in the case of a will. If the person who made a bequeathal appears to be unfair and sinful in that, those who are present should try to correct that — whether during his life, or by reconciling among the heirs after his death. Allah (swt) says:
«If one has reason to fear that the testator has committed an unjust act or a deliberate wrong, and thereupon brings about a settlement among them (the heirs), he will incur no sin by that. Indeed, Allah is Forgiving and Merciful.» (Al-Baqarah 2:182.)
Basic Elements of a Will
Following the practice of the salaf and great Muslim scholars through the ages, an Islamic will should have the following basic elements:
1. INDICATION OF THE TESTATOR’S SITUATION
The will normally starts with the testator’s expression of being in sound mental ability and health. Thus he would be able to bequeath without being under the influence of medications, hallucination, etc.
2. DECLARATION OF FAITH
The testator declares his Islamic faith, mentioning the most important items, including the Shahadah, the belief in the hereafter, and so on.
3. COMMANDING THE SURVIVORS TO DO GOOD AND AVOID SINS
The testator commands his children, spouse, and other relatives and friends to maintain taqwa of Allah. He commands them to obey Allah (swt) and abstain from disobedience. He emphasizes matters that are relevant to the circumstances in which they live and the tribulations to which they are subject. He warns against the numerous innovations and violations of the Din practiced by most people, especially in funeral-related matters (Review our extensive book, “Funerals: Regulations & Exhortations”, which is Part 3 of “The Inevitable Journey” series.). He requires that his preparation and burial be done according to the Sunnah.
Commanding the family to observe the Sunnah and avoid innovations is a practice that was started by the Prophet’s companions. The following are a few such examples:
‘Amir, son of Sa‘d Bin Abi Waqqas, reported that his father said on his deathbed:
“Dig my grave as a lahd 2, and lay the bricks on top of me — as was done to Allah’s Messenger (pbuh).” (Muslim and others.)
Abu Musa al-Ash’ari said at the time of death:
“When you walk in my funeral, walk fast, do not follow me with incense burners, do not erect over me anything that would separate me from the earth, and do not build a structure over my grave. And bear witness that I disown any woman who mourns over me by shaving her hair, beating herself, or tearing her clothes.”
He was then asked, “Did you hear something in this regard?” He replied, “Yes, from Allah’s Messenger (pbuh).” (Recorded by Ahmad and others; authenticated by al-Albani.)
And Huthayfah said:
“When I die, do not announce my death to anyone, because I fear that it would count as lamenting; and I heard Allah’s Messenger (pbuh) prohibit lamenting.” (Recorded by at-Tirmidhi and others; authenticated by al-Albani.)
For all of this, an-Nawawi said:
“It is highly recommended for a person to instruct his family to avoid the innovations that have become common in funerals, and to confirm his covenant with them upon it.” (Al-Athkar.)
4. DECLARATION OF LIABILITIES AND ASSETS
The testator declares all of his liabilities and debts, and all of his assets and possessions. Special attention should be given to hidden or undocumented property or debts.
5. APPOINTING AN EXECUTOR AND A GUARDIAN
The testator appoints the person who will be in charge of executing his will after him. The executor should be given full authority to deal with the assets in order to fulfill the allocations of the will.
If the testator has underage children, he also appoints a well-trusted guardian to take care of their wealth and well-being until they come of age.
It is recommended that the executor and guardian be individuals who are young and likely to outlive the testator long enough to carry out his will as desired.
Those set in charge of the deceased’s children should take good and sincere care of them, and realize that Allah is watchful over them and would surely punish them if they incur any injustice. Allah (swt) warns against such by saying:
«And let them have fear, those who, were they to leave weak offspring, they would fear for them. So let them fear Allah and speak the right words.» (An-Nisa 4:9.)
6. THE BEQUEATHED PART OF THE ESTATE
The testator indicates the amounts that he wishes to bequeath of his estate (up to one-third of the total), and specifies the beneficiaries. If a bequeathal is general, such as, “for spreading the dawah of Islam”, it is recommended to specify the names of some knowledgeable persons who would make the disbursements in that regard.
7. EMPHASIZING THE ISLAMC HEIRSHIP
In non-Islamic countries, it is recommended for the testator to specify his legal heirs and their correct shares (if known at the time of writing the will). Otherwise, he may make a reference to the Islamic law of inheritance, as in this book, and direct that his estate be divided according to it.
Sanctity of the Will
Whether it is said by word of mouth, handwritten, or typed, a will has a special sanctity that must be observed and executed — unless it contains violations as indicated above.
Any witness who tries to change the will without right, or hides some parts that he knows, is sinful by that and liable to punishment, as Allah (swt) says:
«And if (after the testator’s death) anyone alters such a provision after having come to know it, the sin of acting thus falls only upon those who have altered it (And not upon those who may have unknowingly benefited by this alteration.). Indeed, Allah is Hearing and Knowing.» (Al-Baqarah 2:181)
By Muhammad Al-Jibali
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