WASIYYAH

nurul sakinah nasrinurul syawani hamidi

maizatul akmar md isa

Slide Title• What is Wasiyyah ?• How Wassiyah can be made ?• Characteristics of Wasiyyah ?• Are There any Type of Wasiyyah ?• What Obligation of a Will ?• Who get the Will and the Contribution ?• How a Will can be cancel ?• Different between a Will and Gift ?• What Asset cannot be Willed ?

What Is Wasiyyah ?

Wassiyah can be define :

• From the word ‘wassa’ which means to order, advise, promise or give away property after death.

• Shafii scholars are of the opinion that it originated from the adjective “wassa” which means connecting or delivering. In other words, it connects or delivers someones good deeds during his lifetime to be rewarded later after his demise.

How Wasiyyah Can Be Made ?

.

By oral :Any expression which signifies the intention of testator is sufficient for the purpose of constituting a bequest

By written :A written wasiyya where there are no witnesses to an oral declaration is valid if it written in the known handwriting/signature of the testator according to Maliki and Hanbali fiqh.

Characteristics of a Will ?

• Details of the Testator (Name, National Identification Card No., Correspondence Address and Contact No.)

• Revoke all earlier Wills made.• Details of in expectance of marriage to the fiancée

inserted. Will shall not be revoked if mentioned in the Will.

• Appoint minimum of one executor, trustee and guardian. (Executor can be Individual or Trust Corporation under Trust Companies Act 1949.

• Instructions to distribute Estate• Directions for burial and donation of organs or

donation for charity.

• Residual Clause to transfer any Estate that Testator did not mention specifically in the Will. Without Residual Clause, anything not mentioned in the Will is distributed according to The Distribution Act 1958 and hence, the testator's wishes are not fully delivered.

• Special directions or last words to family members and beneficiaries.

• Operate only as a Declaration of Intention, which takes effect after death.

• Does not interfere with power of disposition during lifetime.

• Assets is more than liabilities.• Commorientes Instruction to be written in the Will (If the

beneficiary dies shortly after the testator (e.g. 30 days) he/she still entitled to the assets)

• Product B

Pillars of a Will

AL-MUSI (TESTATOR) الموصی

He is a person who makes wasiyyah. He must have legal capacity at the time of making wasiyyah. It will take effect after his death and he must fulfil the following conditions:

1. The testator must be sane and adult

2. He must be the owner of the property of wasiyyah.

3. He must not be a bankcrupt and debtor.

4. He must be a freed person,

AL-MUSA LAHU (LEGATEE) له الموصی�the person or object to whom the wasiyyah

is made.

Must be capable of ownership actually or constructively.• If he is minor or insane person, wasiyyah can be accepted by his

guardian on his behalf. It can be made in favour of mosque, school, bridge, hospital or

animals for their maintenance. It can be made to the member of deceased’s family who are helpless

and are not his legal heirs like children of those sons and daughters who already died during the life time of their father (deceased).

It can be made to Hmal (child in the womb) but it cannot be executed until the child is born alive.

Lastly, the legatee (Al-Musa Lahu) must survived the Al-Musi (testator) either in fact or in law.

AL-MUSA BEHI (LEGACY) به الموصی� subject matter of wasiyyah. Anything which can be owned lawful

in Islam can be considered as a subject matter of the wasiyyah.

It must be lawful in the sight of Islam. There is no bequest with unlawful or illegal property.

It should be in existence actually and transferable to the legatee after the death of the testator (Al-Musi).

It must be under custody of testator or his executor (Al-Wusi) It must be available at the time of testator’s death. However, wasiyyah can be made with contingent property i.e

which had not yet happened, e.g unripe fruits and unborn young animals, but they must be in existence in the womb o their mother at the time of testator’s death.

AL-SIGHA (FORMULA OF WASIYYAH)

• It is an offer and acceptance. The offer must be made by testator (al-musi) during his life time either verbally or in writing.

• The Holy Qur’an requires that the offer should be made in the presence of two men witnesses as it is mentioned in Surah Al-Ma’ida :O you who believer! When death approaches any of you, and you make a bequest (then take) the witnesses of two

just men of your own folk or two others from outside, while you are traveling through the land and death befalls

on you.• Acceptance becomes essential only when the

bequest is specified i.e to an individual but in the case of mosques, schools and other institution it is not essential.

Cancelation of a Will…

The wasiyyah would be cancelled in the following conditions : When Al-Musi (testator) revoked his bequest during his life time.When Al-Musi became insane after making his wasiyyah and continued on this condition up to his death.When Al-Musa Lahu (legatee) died before Al-Musi and the wasiyyah was for a fix person.When legatee killed Al-Musi intentionally.When the legatee returns back the wasiyyah after the death of Al-Musi to his heirs.When the Al-Musa Behi (legacy) was specified and it was destroyed before the death of testator or before the acceptance of the legatee after the death of Al-Musi (testator).When legacy (Al-Musa behi) belongs to another person but not to testator and it is proved, then the wasiyyah would be revoked.

Are There Any Type Of a Will ?

Absolute will

A will that is done freely

Not bound by certain conditions that are imposed on the inheritance that may be included by the testator.

Conditional willA will that contains certain

conditions imposed by the testator.

The jurists agree that the conditions imposed in a will are valid as long as they do not violate the Islamic law

Generic will

A will made in general such as to the people of a village or a city.

Specific willIntended specifically for a

particular party

There is possibility that the testator, in making a will to a specific person, compares the amount to be willed with the amount that one of the heirs should receive.

Choices of distribution in Wasiyyah

• Distribute 1/3 to non-waris and the balance 2/3 to the Waris as stated in Sijil Faraid .

• All estate to the Waris• All estate to anyone you choose with the consent of all the

Waris

What Asset Cannot be Willed ?

• Life Insurance policies held under Section 166 of the Insurance Act 1996 with nominees named. (The spouse, children or parents as nominees)

• Employees Provident Fund with nominees named. (Employees Provident Fund Act 1951)

• Assets held under joint ownership, which gives right to the survival joint owner.

• Trust created on the money payable upon death.

• What is Difference between Gift and a Will ?

• Anyone Know ?

Many people make a mistake by considering gift (hiba) and will (wasiyyah) same, though these are two different things under Islamic Law so let us know them both briefly:

GIFT(hibah)

When a person gives any asset during his lifetime to one of his heirs or relatives then that will be regarded as a gift.

WILL (wasiyyah)

When a person requests for transfer of ownership of the asset to a specific person after his death then it was regarded as will.

Cases when the Wasiyyah is..

• Strongly Required -A Muslim must make a will if he is involved in any kind of risk

• Recommended -To settle what he owes to others and also arrange repay debts owed to

Allah in the will , for example : kaffaraatPerformance of the required HajjOverdue zakah

•Preferred -For Muslim who have a reasonable size of wealth

•Not preferred-Not preferred if the heirs are poor.

•Haram or prohibited-The will should not cause any harm

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