“Unto Allah do we belong and unto Him is our return” — these are the touching words which will be murmured by strangers, friends and relatives upon our imminent demise.
Not only do we return to Allah, our wealth which He had blessed us for a limited duration also returns to Him. We had come empty-handed into the World and empty-handed we shall return.
Allah, Most High becomes the sole owner of all our properties, businesses, furniture, vehicles, bank accounts, investments, gold coins, jewellery, crockery and even the very clothing we are wearing the day we die. Nothing and nothing goes into the grave with us except a pocket-less kafan.
Allah Most High being Most Kind and Merciful has given the owner of the wealth permission to bequeath one third conditionally to others. What these conditions are, could be learnt from reliable Ulama. The other two thirds have to be distributed in accordance to Allah’s Commands.
Please, no ifs or buts. No “he worked harder and she deserves more”. No trying to control the destiny of Allah-given wealth from the grave. And please, no fighting amongst offspring. Let Daddy/Abba/Papa go in peace with a last act of obedience to Allah. Do not pressurise him not to defy Allah by making his own will.
Kindly find for your convenience an Islamic Will with this issue of The Shariah. Every baaligh person should sign it and keep it safe. At most it will take an hour to read the will and to sign it. This one hour could make all the difference between your children fighting in courts and consuming Haraam for the rest of their lives.
WHAT YOU HAVE TO DO TO RENDER THE WILL VALID AND LEGAL
1) The testator (i.e. the one who makes a will) and two witnesses must sign each page of the Will.
2) The witnesses must not be under 14 years of age. They must be 14 or over.
3) The witnesses may not be beneficiaries or spouses of beneficiaries. For the purpose of signing Wills, ‘beneficiaries’ include the executors, administrators and guardians.
4) All signatories must be present throughout the signing process. No signatory may leave the room until all signatories have signed each page.
5) The date of signature should be inserted on the last page by the testator.
6) Any deletion, addition or alteration must be identified by the signatures (full signatures) of the testator and witnesses as described in No. 4, above.
IF YOUR MARRIAGE IS REGISTERED IN COMMUNITY OF PROPERTY
If by some misfortune you have registered your marriage in community of property, the Islamic Will will not be valid in terms of non-Muslim law. However, if for some reason you have cancelled or cancel your community of property contract, you can renew the registration of your marriage, if you so desire. When doing so, first enter into an Ante Nuptial Contract.
Such a contract will enable you to make an Islamic Will which will be valid even in terms of the law of the country.
Since it is compulsory according to the Shariah to distribute the deceased’s estate in accordance with the Law of the Shariah, Muslims should make out an Islamic Will even if their marriages have already been registered in community of property. Although in this case the Islamic Will will not be valid in terms of kuffar law, nevertheless the testator should advise and instruct his Islamic heirs to fear Allah Ta’ala and to act in accordance with the Islamic laws of inheritance in the distribution of the estate. After the non-Muslim law has taken its course, the Islamic heirs must arrange a proper re-distribution of the deceased’s estate to conform with the Command of Allah Ta’ala.
According to the Shariah, Wasiyyat is permissible for a non-heir. Wasiyyat in favour of an inheritor is not permissible. Clause No.5 (iii) of the Islamic Will (which is an insert with this edition of ‘The Shariah’) makes mention of Wasiyyat. If the testator makes no wasiyyat, section (iii) of clause No.5 should be deleted by striking a line across it. All signatories should identify the deletion with their full signatures.
If the testator wishes to make wasiyyat, the nature and description of the wasiyyat should be set out on a separate sheet of paper. On top of the sheet of the Wasiyyat paper, write: Schedule A — Wasiyat (see sample form below)
When making out the Wasiyyat, bear in mind the following:
a) A Wasiyyat cannot be made for any Islamic heir as such Islamic heirs inherit automatically in the estate of the deceased.
b) A Wasiyyat is valid in only one third of the balance of the estate after payment of funeral expenses and debts.
c) The Wasiyyat paper, viz., Schedule A, must also be signed by the testator and the witnesses.
The Masaa’il of gifts
1) A gift is only valid in the Shariah, when physical possession occurs.
2) One of the greatest problems is that after the demise of a person, people claim that “he gave it to me while he was alive”. Understand well that unless physical possession was not taken, it is an invalid gift.
3) Physical ownership means that the receiver is totally free to dispose independently with whatever has been gifted to him.
4) If such ownership was not established then all the heirs will inherit.
EXAMPLE OF A WASIYYAT FORM (This will be placed as an annexure to your Will)
SCHEDULE A – WASIYYAT
I, _____________________________, hereby make Wasiyat that one third of my wealth be distributed for:
1. Salaah Fidyah (State how many Salaats, or how many years of Salaat. This will naturally be updated regularly as one performs the Qadha-e-Umri)
2. Fasting Fidyah (same as for Salaat)
3. Qurbani (state how many Qurbanis)
4. Haj-e-Badal (If Fardh Hajj was not made)
5. Building of Masjid
6. Construction of borehole
7. Eesaale-Thawaab to person (name)
8. Eesaale–Thawaab (Institution name)
Witness 1: ____________________
Witness 2: _____________________
Note: The above points are merely examples. One may have only some of the above and perhaps even add more than what is stated above.
Jamiatul Ulama Gauteng