A bequest made by a person for part of his wealth to be contributed after his death to a person or institution is termed wasiyyat.
The Shari`ah permits a wasiyyat of one third or less of a man’s estate. It is not permissible to make a wasiyyat of more than one third. The amount in excess of a third of the value of the estate is not valid.
The following acts of a person come within the classification of a wasiyyat:
- Contributions made during maradhul maut, e.g. gifts, waiving debt, charity.
- Relating any disbursement or contribution of wealth to his maut (death), e.g. a sum should be contributed to a musjid, madrasah, etc. or a certain amount should be given to a non-heir or a specific sum should be spent on feeding the poor, etc.
- Payment of fidyah (compensation) for salaat, saum and hajj which were not executed during the life of the deceased.
- Payment of kaffaarah (penalty) for violated oaths, fasts etc.
- When a man makes a wasiyyat, it devolves as an incumbent duty on the heirs to execute the wasiyyat. The obligation of fulfilling the mayyit’s wasiyyat is incumbent only up to one third of the value of the total assets in the estate. It is not incumbent to pay the amount in excess of one third, e.g. the mayyit had made a wasiyyat for R5,000 to be contributed to a Musjid. However, the total value of his estate is R9,000. Thus, only R3,000 will be given to the Musjid.
- If all the heirs voluntarily accede to execute the full wasiyyat even in excess of one third, it will be permissible. However, the consent of minor heirs is not valid. Hence, nothing may be taken from their share for payment towards the excess.
- The ‘third’ in this context refers to one third of the value of the estate’s assets after payment of funeral expenses and debts.
- The consent of an adult heir who is absent cannot be assumed. Hence, nothing may be taken from the absent heir’s share for the execution of the excess wasiyyat.
- When requesting the consent of an absent heir, it is essential to furnish full details of the wasiyyat and the amount. His consent without him having been informed of the details of the wasiyyat is not valid.
- Only the consent which the heirs give after the death of their murith (the one in whose estate one inherits) is valid. If during the lifetime of the mayyit the heirs had consented to a wasiyyat more than a third, but withdrew such consent after the death of the murith, then the initial consent will be invalid.
- When a person has neither heirs nor creditors and he makes a wasiyyat for all his wealth to be contributed as he directs, then such a wasiyyat will be valid.
- The wasiyyat will be valid only if the musi (the one who makes the bequest) is sane and an adult.
- The wasiyyat will be discharged only if there are assets after the payment of funeral expenses and debts.
- The wasiyyat will remain valid even if the beneficiary of the wasiyyat dies before he accepts the benefit of the wasiyyat. The wasiyyat amount will be paid to the heirs of the beneficiary. The essential condition is that the beneficiary should be alive at the time the wasiyyat is made in his favor. Thus, if a wasiyyat is made in favor of a deceased person, the amount will not be paid to the heirs of the deceased in whose favor the wasiyyat was made since such a wasiyyat is not valid.
- The subject of wasiyyat should be an object of a right which can be owned, e.g. a fixed property, a vehicle, garments or the right to live in a house for a specified time, e.g. 5 years. If a right (i.e. a right which is valid in the Shari`ah) is bequeathed, the asset (e.g. house) will remain the property of the heirs while the beneficiary of the wasiyyat will enjoy the right of occupying the house for whatever time specified in the wasiyyat.
- A wasiyyat in favor of an heir is not valid. However, if all the adult heirs uphold the wasiyyat it will be valid. But, nothing will be taken from the shares of minor heirs to fulfill the wasiyyat in excess of one third which the adult heirs have accepted to uphold.
- A wasiyyat is not valid for such a person who happens to be an heir on the death of the murith. Sometimes a person becomes an heir in the absence of a closer heir, e.g. a grandson (son’s son). If a man is survived by a grandson and no sons of his own, the grandson will become an heir. But, if a son is living, the grandson will not inherit. Thus, if at the time of the murith’s death the person is not an heir, the wasiyyat in his favor will be valid. Another example is a brother who is not an heir if the mayyit is survived by either his father or sons. A wasiyyat in favor of a brother will, therefore, be valid. However, if the mayyit has no father, sons or grandsons (son’s son), then the brother will be an heir, hence a wasiyyat for him will not be valid.
- A wasiyyat for a non-Muslim is valid although there are no ties of inheritance between Muslims and non-Muslims.
- The beneficiary of the wasiyyat is termed Musa Lahu. Both the acceptance and rejection of a wasiyyat during the lifetime of the musi (the one who makes the wasiyyat) are not valid. The musa lahu’s acceptance or rejection is valid only after the death of the musi.
The Kinds of Wasiyyat
There are four kinds of wasiyyat: Wajib, Mustahab, Jaa-iz and Haraam.
Wajib Wasiyyat (Compulsory)
1. It is obligatory for a person to make a wasiyyat if he has liabilities to discharge. He should declare his liabilities verbally to witnesses or reduce these to writing so that rights of others are not plundered or lost after his death. Such liabilities are debt, articles of trust (amaanat) in his possession or any other right owing to others.
2. It is obligatory for a person to make a wasiyyat in regard to fardh salaat, zakaat, fardh saum, Kaffaarah etc. which he had not discharged.
It is a grave sin to refrain from wajib wasiyyat.
Mustahab Wasiyyat (Preferable)
1. It is Mustahab to make wasiyyat that the kafan (burial shrouds) and dafan (burial) be in conformity with the Sunnah and that no un-Islamic and bi’dah customs be organized.
2. If one’s assets are considerable, it will then be mustahab to bequeath any sum up to one third the value of the estate to charitable works, e.g. musjid, madrasah, etc. However, if one’s estate is not considerable it will not be mustahab to make a wasiyyat for charity since such a wasiyyat will prejudice the heirs. It is more meritorious to leave the entire estate to the heirs if the estate is small and the heirs are needy.
Jaa-iz Wasiyyat (Permissible)
It is permissible to make wasiyyat of all things which are permissible, e.g. a certain person should conduct the janaazah salaat, etc.
Haraam Wasiyyat (Unlawlful)
It is haraam to make wasiyyat of anything which is not permissible in Islam, e.g. to bury one’s body in another city; to bequeath wealth to such a person or institution which will utilize the funds in haraam activities; making a wasiyyat which interferes in any way whatever with the shares of the heirs.
It is also haraam to dispose of one’s estate during one’s lifetime if the intention is to deprive one’s heirs. A man who has no sons sometimes is averse to his brothers or step-brothers inheriting. In such an attitude he shows displeasure with the decree of Allah Ta’ala. Consequently, he either disposes of his assets in his lifetime or he makes haraam bequests to deprive the rightful heirs. This type of transgression will be severely punished in the Aakhirah.