Indeed all praises are due to Allah, we praise Him, we seek His help, we ask for His forgiveness, and we rely solely on Him. We seek His refuge from the evil in our souls and from our wicked deeds. Whoever Allah guides, no one can misguide. And whomever Allah misguides, no one can guide. I bear witness that there is no one worthy of worship except Allah, He is One, with no partners, and I testify that Mohammad (ﷺ) is His Messenger and His slave.
This article is published in 6 parts:
This article is published in 6 parts:
- Introduction & General Rules: Inheritance in Islam (1)
- Primary Heirs: Inheritance in Islam (2)
- Secondary Heirs: Inheritance in Islam (3)
- Other Rules: Inheritance in Islam (4)
- Share Distribution & Examples: Inheritance in Islam (5)
- Islamic Will: Inheritance in Islam (6)
- Conclusion: Inheritance in Islam (7)
PART 6: ISLAMIC WILL - AL-WASIYYAH (الوصية)
In Shariah, the term Al-Wasiyyah (الوصية) is used for Islamic Will, and it is very important to write one’s will as recommended by the Prophet (ﷺ). Al-Wasi (وصى) means executor. Al-Musi (الموصى) is Testator the one who made Wasiyyah. Al-Musa Lahu (الموصى له) refers to the person who is the beneficiary of the Wassiyah.
What can be in bequeath/will
Shariah has placed two restrictions on Testator (الموصي, one who make Will وصية):
- Firstly, to whom he can bequeath his wealth/assets - Al-Musa Lahu (الموصى له)
- Secondly, the amount that he can bequeath (which is maximum of 1/3 of overall estate)
Maximum Limit of 1/3rd
The limit of 1/3 is based on following Hadith:
Narrated Sad bin Abu Waqqas: “The Prophet came visiting me while I was (sick) in Mecca, ('Amir the sub-narrator said, and he disliked to die in the land, whence he had already migrated). He (i.e. the Prophet) said, "May Allah bestow His Mercy on Ibn Afra (Sad bin Khaula)." I said, "O Allah's Apostle! May I will all my property (in charity)?" He said, "No." I said, "Then may I will half of it?" He said, "No". I said, "One third?" He said: "Yes, one third, yet even one third is too much. It is better for you to leave your inheritors wealthy than to leave them poor begging others, and whatever you spend for Allah's sake will be considered as a charitable deed even the handful of food you put in your wife's mouth. Allah may lengthen your age so that some people may benefit by you, and some others be harmed by you." At that time Sad had only one daughter.” [Sahih al-Bukhari]40
If the legal heirs of the Testator (الموصي) agrees then it is allowed to bequest more than 1/3. However, Maliki fiqh states 1/3 as absolute which cannot be overridden.
Rules for Al-Wasiyyah (وصية)
- No specific wording is needed for Wasiyyah.
- Wasiyyah does not necessarily need to be written, it can be oral, as far as there are witnesses.
- Two witnesses are required to declare the Wasiyyah.
- Wassiyah is paid after the funeral / burial expenses and payment of debts.
- Wassiyah may be general or specific. E.g. 1/3 of my estate or $10,000 etc)
- While Will complies with Shariah, it should also comply with law of the land (if its non-Muslim land) so that Will can be executed without unnecessary legal hustles.
- In non-Muslim land, its preferred to have alternative names for Al-Musa Lahu (الموصى له) / Beneficiaries, in case no surviving heir is left at the time of deceased’s death.
Rules for Al-Musi (الموصى)
- Al-Musi (الموصى) must be an adult sane Muslim and he must have capability to make a will and he should not be under any compulsion.
- Adult is defined in Shariah as person with clear evidence of puberty.
- Al-Musi (الموصى) must own what he bequests.
- Al-Musi (الموصى) can revoke his own will with a subsequent will.
Rules for Al-Musa Lahu (الموصى له) – Beneficiary of the will
Al-Musa Lahu (الموصى له) or beneficiary of the will/bequeath cannot be an existing heir. This is based on following hadith:
- A bequeath in favor of Christian or Jewish wife is valid, as they are not sharer in inheritance but can be given bequeath.
- Killer is generally excluded from Wassiyyah. Hanafi fiqh said if heirs give their consent, then it is allowed. Maliki/Shafii accepted it as Hibba (gift). Hanbali fiqh said if deceased allowed the will after fatal injury and before his death, then it is allowed (possibility if it’s accidental injury).
- Al-Musa Lahu (الموصى له) or beneficiary must accept or reject the will after the Testator (الموصي)’s death. If he doesn’t accept his share and dies, then share is added back into the estate (of deceased) as per hanafi fiqh
- Al-Musa Lahu (الموصى له) or beneficiary becomes owner of the share as follows:
- Hanafi/Shafii: at the time of death of the testator
- Malaki/Hanbali: on accepting the bequest
Rules for Al-Wasi Al-Mukhtar (وصى المختار) – Executor of Will
- The Executor (وصى) must be trustworthy and truthful person. He is the appointed person by the Testator (الموصى) to execute his will.
- Generally, in Islamic estates this will be the Qadi (قاضي), but Muslims living in west must appoint a trustworthy executor.
- Testator may appoint multiple executors. Authority of the Executors is defined by the Testator, i.e. if executor works independently or with others.
ISLAMIC WILL TEMPLATE - DOWNLOAD
To download the template, click on the link: IslamicWill_template_v0-1.doc
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- Sahih al-Bukhari, Volume 4, Book 51 Wills and Testaments (Wasaayaa), Number 1
- Sahih al-Bukhari, Volume 4, Book 51 Wills and Testaments (Wasaayaa), Number 5
- Sunnan Abu Dawood, also similar hadith are reported by Ibn Majah, Ahmed and others.