Tasarrufaat (Operations) During Maradhul Maut

  1. If during maradhul maut a man acknowledges a right/obligation which is common knowledge or evidenced by witnesses, then such acknowledgement will be fully valid and its discharge will be just as incumbent as all other rights and obligations which were confirmed prior to maradhul maut.
  2. If during maradhul maut a man acknowledges a right/obligation in favor of non-heirs, which is neither confirmed by common knowledge nor evidenced by witnesses, then this acknowledgement too is valid. This obligation will also have to be incumbently discharged before the distribution of the mayyit’s assets among his heirs. There is, however, one difference. The debt/obligation of the first kind will be discharged first. After this, if there are assets available, the second class of obligations/liabilities will be paid.
  3. If during maradhul maut a man makes an acknowledgement of any obligation in favor of an heir or he makes a gift of an asset to an heir, it will have no validity. These operations are null and void. However, if all of the adult heirs uphold the operation, the obligation will be executed from the assets remaining after funeral expenses and payment of debts.
  4. If a person who is an heir of the testator ceases to be his heir, the acknowledgement in his favor will be valid. This will happen if the beneficiary of the acknowledgement predeceases the testator. In view of him dying first, he no longer remains an heir, hence the acknowledgment of the debt/obligation in his favor is valid and the debt/obligation will be paid to the heirs of the predeceased former heir. If the acknowledgement is confirmed by common knowledge or evidenced by witnesses it will constitute a debt of the first category of qardh. In the absence of such evidence the obligation will be assigned to the second class of qardh.
  5. All charitable acknowledgements and endowments of a non-obligatory nature made during maradhul maut come within the scope of wasiyyat.
  6. Directives issued regarding payment of compensation (fidyah/kaffaarah) for unfulfilled salaat, saum, hajj, qasam (oath), etc. also come within the scope of wasiyyat.
  7. If a man divorces his wife during maradhul maut, whether by talaaq baa’in or talaaq raj`i, the talaaq is effective. If the man dies before the expiry of her iddat, she remains his heir and will inherit in his estate. If he dies after the expiry of the iddat, she will not inherit in his estate.
  8. If during her maradhul maut a woman enters into a khula` contract in which she pays her husband a sum of money, the khula` will be valid.
  9. If a man marries during maradhul maut and the mahr fixed is the normal mahr-e-mithl of the woman’s family/tribe, such mahr will be a valid debt on the mayyit. If the mahr fixed is more than mahr-e-mithl, the excess will be in the category of wasiyyat.
  10. During maradhul maut a man purchased an asset and paid for it. This purchase and payment are valid provided it is borne out by witnesses or common knowledge. Documentary evidence such as title deeds, official receipts, and other instruments of proof will be accepted as valid evidence.
  11. If a man during maradhul maut acknowledges that he has misappropriated or destroyed the property/amaanat (an item held in trust) of a certain heir and that he is liable for payment of compensation, the this acknowledgement will constitute a debt of the first category provided that there is evidence to confirm this acknowledgement of debt.
  12. If during maradhul maut a man declares that a certain debt owing to him, i.e. a debt which he gave prior to his maradhul maut, has already been paid by the debtor, then such declaration is valid provided the debtor is not one of his heirs.
  13. If during maradhul maut a man makes an acknowledgement of debt/obligation in favor of a non-heir and the heirs accept this declaration, then the acknowledgement will be valid even in the absence of evidence.
  14. If during maradhul maut a man marries a woman after having acknowledged a debt in favor of her, then this acknowledgement is valid. If there is no evidence to corroborate his statement, the debt will be of the second category.
  15. If during maradhul maut an insolvent man waives debt owed to him, then such a waiver is not valid. The creditors can claim the debt from his debtors.
  16. If during maradhul maut a woman says that she has already received her mahr or she waives her mahr, then both acts are invalid. However, if there is evidence to support her in the claim of having received her mahr, her statement will be valid. If the heirs uphold the waiving of her mahr, the waiver too will be valid.
  17. If during maradhul maut an insolvent man accords preferential treatment to a particular creditor by making a payment to him, such an act is not valid. The rights of all creditors are equally related to his estate which will be distributed among the creditors in proportion to the respective amounts owing. The preferential payment made will be reclaimed by the creditors.
  18. The same rule pertaining to preferential treatment as mentioned in No. 17 above, will apply if a man pays his wife’s mahr during his maradhul maut or if he pays any outstanding wages/fees owing to employees. The payment thus made will not be valid.

NOTE: A payment of debt will only be described as preferential in the death of the debtor. While he is living, all payments made by him are valid since it cannot be claimed with certitude that his illness is in fact maradhul maut. However, on his death it will be conclusively established that the illness was in fact maradhul maut, hence the other creditors are entitled to annul the preferential payments.

19. A gift made to a non-heir in maradhul maut will be in the category of wasiyyat. If the value of the gift is less than the value of one third of the estate or equal to one third, it will be valid. Any amount in excess of one third the value of the estate is not valid and will be reclaimed by the heirs.

 

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