MUSLIM WILL - RESTRICTIONS AND WISDOM BEHIND THE RIGID COMMANDMENT
Contributed by : Rozanahah binti Juisin
 

Introduction

A Muslim Will or interchangeably called “Wasiyyah” is often misunderstood by many. People in general either perceive it to be very rigid in its application or believe that the provisions are identical to conventional Wills. In this month’s article, our Syariah team aims to provide you with a simple understanding of this instrument.

What is a Muslim Will (“Wasiyyah”)?

A Muslim Will or Wasiyyah is defined as an Iqrar (admission) of a person made during his lifetime with respect to his property or benefit thereof, to be carried out for the purposes of charity or for any other purpose permissible by Islamic Law, after his death. Therefore, the Will is effective only after the death of the Testator[1].

The Law

A Muslim Will is different from a conventional Will, as the Testator in the latter may dispose of the whole of his/her property without limitation to whoever he wishes, after his/her death. Amongst the elements/principles which differentiates Muslim Wills from that of conventional Wills are as follows:-

  • Rule No. 1: To bequest not more than of the total wealth

Unlike in a conventional will, a Muslim Will shall only affect the distribution of one-third (⅓) of the Testator’s total estate and the bequest shall not be made in favour of the legal heirs unless the consent of ALL legal heirs are obtained (after his/her death). The wisdom behind this rigid commandment is to prohibit the Testator from defeating the entitlement of his/her legal heirs under the Syariah Law of Fixed Distribution (Faraid). This quantum is derived from the report of the Prophet Muhammad’s companion, Sa’ad ibn Abi Waqqas, who said as follows:

“The Prophet came to me in my sickness. I was then at Mecca and did not like to die at a place from where I had migrated. The Prophet of God said: “God shall have mercy on Ibn Nafra.” I said to the Prophet. “O Prophet! I am wealthy and my only heir is my daughter. Permit me that I make a will of my entire property.” He said, “No”. I said, “Should I make a will of two-thirds of my property?” He said, “No”. I said, “Permit me for a third’. The Prophet replied, “You may make a will of a third, although this is also too much. To leave after your heirs well to do is better than you leave them poor and in want whilst others met their needs.” [Sahih al-Bukhari, Vol 4, translated by Muhammad Muhsin Khan (Lahore: Kazi Publication, 1979), p3]

The significance of the above hadith[2] stems from the notion that the balance of ⅔ should benefit the heirs left behind by the deceased and in accordance with the rule of faraid. To better understand this is to understand the Law of Faraid[3], an important aspect of Islamic law as it provides for the systematic distribution of property upon the death of a person.

  • Rule No. 2: No bequest to the legal heir

The rationale for prohibiting the bequest in favour of the legal heirs is to avoid the Testator from giving preference to some legal heirs over the others, thus defeating the principle of law which has allocated fixed portions to each heir in the inheritance (Faraid). In the case of Siti Bte Yatim v Mohamed Nor Bin Bujai[4], the deceased left a will in which he devised the whole of his property to his son, and excluded his other heir; his wife. It was quite clear that the deceased’s intention in making the will was to deprive his wife of all shares in his estate as he thought that she was sufficiently provided for. The Court held that the will of a Muslim which attempts to prefer an heir by giving him a bigger share of the estate than he is entitled to by Islamic Law is wholly invalid without consent of the other heirs. Therefore in this case, as the will of the deceased attempted to prefer his son at the expense of his widow, it was invalid.

  • Exceptions to the General Rule

As in most other legal principles, there are always exceptions to the general rule. The majority of jurists (Fuqaha) have opined that any rivalry, animosity and viciousness that could arise from a disproportionate bequest to the legal heirs, will lose ground if all the legal heirs gave their approval/consent to the bequest (Will). In other words, such disposition is valid only if it is unanimously approved by all legal heirs. Nevertheless, bear in mind that since a Will is only enforceable upon the death of the Testator, therefore, consent of all legal heirs which is required to validate the Will can only be procured upon the death of the Testator and not prior to the death of the Testator.

In the case of Abdul Rahim v Abdul Hameed & Anor[5], the Court held that since the will clearly showed that the deceased attempted to dispose of all his property by his will, it contravened his power of disposal by exceeding the legal one-third disposal of his properties. It could not therefore be valid. In the recent Court of Appeal (Civil Court) decision of Ahmad Abd Majeed v Habibah Abdul Majid[6] this principle was followed. The transfer of a land pursuant to the deceased’s will was challenged by the deceased’s legal heirs as it exceeded the one-third limit rule. The Court of Appeal recognised the position of Muslim will under Syariah law that the deceased’s testamentary capacity to devise his property is limited to one-third of his total property and therefore the will that exceeded the rule is invalid unless other legal heirs consented to the will. In this case it was found that the other legal heirs had never consented to the will. Therefore, the will was invalid and the transfer of the land in question was also invalid.

Notable Issues

It is not uncommon for people to resort to creative structures, such as injecting all assets into a company, to circumvent the Faraid principles including creating a Will with the intention of distributing more than one-third of their total property and the bequest is for the benefit of their legal heirs. In the strict sense, the intention is not in compliance with the Syariah law although most people proceed on the assurance that there is no likelihood that their legal heirs would contest the Will. Therefore, it is the lawyers’ duty to ‘warn’ the clients of the potential risk of deposing Wills of this nature. In the event any of the legal heirs contest the contents of the Will after the death of the Testator, the Court shall nullify the portion which contradicts Syariah law whilst the remaining valid disposition shall remain enforceable. The Court would then proceed to distribute the remainder of the property (the portion that has been nullified) in accordance with the Law of Faraid (fixed distribution).

Conclusion

As a Will is merely one of the options available in the administration of a Muslim’s estate to compliment the comprehensive Faraid principles of fixed distribution, it is not therefore meant to provide an all-encompassing solution to estate planning but rather enable non-legal heirs[7] to receive a benefit from the estate of a Muslim testator.

There are various other instruments available that Muslims could opt for, such as Hibah (Lifetime Gift), Hibah Amanah (Lifetime Gift with Trust Deed), Spouses’ Post Nuptial Agreement and Wakaf (Charitable Gift), with each instrument targeting a different area of estate planning. We will give you some insight on these instruments in our next Syariah newsletter!

Notes:

[1] A person who dies leaving a will or testament in force. According to s.6 Muslim Wills (Selangor) Enactment 1999, a testator shall be a person who has attained the age of 18, is of sound mind, acts on his own free will and is not prohibited from administering his property at the time of making the will.

[2] A collection of traditions containing sayings of the Prophet Muhammad which, with accounts of his daily practice (the sunnah), constitute the major source of guidance for Muslims apart from the Quran.

[3] Faraid is defined as a science or knowledge pertaining to the distribution of a deceased’s property after his death to the legal heirs in accordance with the fixed portions prescribed in the Quran and further explained by Sunnah.

[4] [1983] 1B MLJ 34

[5] [1983] 2 MLJ 78

[6] [2007] 4 CLJ 355

[7] For instance an adopted parent/children, step parent/children, non-Muslim relatives, friends or charitable institutions.

 

This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. SRL accepts no responsibility for losses that may arise from reliance upon information contained in this publication. Should you require professional advice, please contact our partners. This publication is not intended to solicit clients and it does not in any way create a solicitor-client relationship. The reproduction of the contents of this publication in part or in its entirety other than for private non-commercial use is strictly prohibited.

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