Importance of preparing one’s Will & Testament Islamically
Writing and preparing a Will is undoubtedly very important, especially in non-Muslim countries, insuring that upon death, one’s wealth and assets are distributed according to Shariah.
The Prophet ﷺ said: “It is not befitting for a Muslim who has something to make a Will of, to remain for two nights without having one’s last Will and testament written and kept ready with one.”
The narrator of this Hadith (Abd Allah ibn Umar ibn al-Khattab) stated after hearing this
“I did not let even one night pass by except that my Will would be kept by me.”
Making a Will becomes even more important in non-Muslim countries. The reason being is that, failing to leave a valid written Will can result in the law of the land deciding on how your estate is to be distributed, which obviously will not be in accordance with Shariah (Islamic law). Writing a Will is not only for old people, rather all those who have reached puberty should quickly get their Will prepared, for there is no guarantee of when one will die.
Below are simple and brief guidelines with regards to preparing and writing a Will:
The first and foremost aspect worth noticing here is that many Muslims are mistaken in believing that, writing a Will means distributing one’s wealth and estate amongst the inheritors during one’s lifetime.
This is incorrect, as making a Will does not mean one must divide one’s wealth amongst the various inheritors in one’s life; rather, one must merely stipulate in the Will that “upon my death, my executors will distribute my wealth according to Shariah”. One should also state that this will be determined by a local Muslim scholar or Mufti, who will be contacted and appointed by my executors upon my death.
The reason behind this is that the inheritance portions have been determined and allotted by Allah Most High in the Qur’an. These portions vary according to who is alive at the time of one’s death. Death with leaving parents behind will differ from passing away after the parents have passed away, in that the inheritance portions will be different in both cases.
As such, one cannot determine in one’s lifetime as to how much percentage of one’s wealth will be exactly allocated to each individual, for one is unaware who will be alive at the time of one’s death. Even the death of one person can make a big difference in the division and distribution of the estate.
Whoever administers your estate will ascertain (in collaboration with a knowledgeable scholar) which of your relatives are still alive and what fixed shares they are automatically entitled to inherit by applying the criteria of Shariah.
Moreover, it is unlawful and invalid to make a bequest (Wasiyya) in favour of an individual who automatically is entitled to receiving a share of the estate, such as one’s spouse, children and parents, etc. The Messenger ﷺ said “Verily Allah has given each rightful person their right, thus there is no bequest in favour of a inheritor.”
However, if one wished to make a bequest/Will for a non-relative, or for a charity, then this would be allowed (and rewarded), but only up to a third of one’s total wealth. The remaining two thirds will be left to be distributed amongst the relatives according to the fixed shares prescribed by Allah Most High. If one does not make a bequest of up to one third of the estate, then all of the estate will be divided between the surviving relatives. The Messenger of Allah (Allah bless him & give him peace) forbade from making a bequest of giving one’s wealth in charity which is more than one third.
The second point to remember here, which is very important, is that one must distinguish between a bequest/Will (wasiyya) and a gift (hiba). Many people fail to differentiate between the two, thus a grave error is committed.
What a person gives to another in one’s lifetime is considered a “gift” whilst attributing the giving of something after one’s death is a “bequest or Will (Wasiyya)”. For example, if I give my house to a friend whilst I am alive, then that will be a gift, but if I was to say that my friend will take ownership of my house after I pass away, then that is a bequest.
A point worth noting here is that Islamically a gift is only valid and complete when the one to whom the gift is given, takes full ownership and possession of the item. Merely, registering it on one’s name is of no consequence in Shariah, hence the gift will be considered invalid. The possession in houses and properties will be established by the giving of keys, deed and leaving no obstacles for the one whom the gift is given to come and reside in the property.
Thirdly, there is the issue of the husband and wife. If the house is solely owned by the husband, then upon his death, it would be distributed among all the inheritors. Many times it is observed that years pass by after the husband’s death and the inheritance is not distributed. The deceased’s wife and some children keep residing in the house without even thinking about distributing it. This is a grave sin committed by all those who overlook this great injunction of Shariah.
If the house was jointly owned by the couple, then in the event of one of the spouse’s death, half of the house will remain in the ownership of the other spouse, and the remaining half will be distributed. Thus, it would be wise for the couple to have joint ownership of the house. This also should be made clear to all the children, for being negligent in this regard brings about disputes and problems.
Note that if the inheritors give their consent (without being pressurized) in their mother or father residing in the house, then this is permissible. However, what is necessary is that the shares are distributed, and then they may give their consent in allowing their mother or father to reside.
The fourth point to note with regards to inheritance is that at times the deceased makes a unlawful and invalid bequest, such as saying that, my eldest son will take such and such property, the other such and such, my daughter will take the house, etc.
In this case, it will be unlawful (Haram) and a grave sin for the relatives to distribute the inheritance according to the bequest made by the deceased. The estate must be distributed in accordance with the Qur’an and Sunnah.
Finally, one must make sure that one’s Will meets the requirements of the law of the land, for failing to do this may well render one’s Will invalid. So in order to ensure that one’s assets are distributed in accordance with the Shariah after one’s death, one must write a Will, and that “Will” must comply with the requirements of the country one is residing in. Therefore, it is advisable that one seeks the advice of an expert practicing Muslim solicitor.
Normally when making a Will, one would stipulate the following:
1) Revoking of all previous Wills.
2) Naming the executors of the Will.
3) Payment of funeral and burial expenses.
4) Payment of all debts connected to the servants of Allah: After one’s death, paying off one’s debts is given primary consideration. Thus, one’s leftover wealth will first be utilized in repaying the debts, and then the remainder, if any, will be distributed amongst the inheritors according to the Shariah. Note that this is with regards to debts payable to the servants of Allah (and not with regards to liabilities due by Shariah, such as unpaid Zakat, etc). Also, there is no condition here of it being from only one third of one’s wealth.
5) Payment of any bequest (Wasiyya): This refers to any religious liabilities, such as unpaid Zakat, Fidya for Salat, etc, and also anything that one would like to give in charity. However, the condition here is that this is only permissible from one third of one’s wealth.
It is worth remembering here that along with one’s written Will, one should have a separate document stipulating the number of unperformed prayers, missed fasts, unpaid Zakat, unperformed Hajj, any other religious obligations and debts payable to the servants of Allah.
One must strive in accomplishing these obligations in one’s life, and make the necessary amendments to the document whenever an obligation is fulfilled. For example: One had 500 unperformed prayers. In such a case one should stipulate this in the document. Thereafter, whenever, a prayer is made up, it should be deducted from the total of 500. This “important” document should be attached with the Will in order to let the relatives know of one’s obligations and liabilities after one’s death.
6) Distribution of the remaining two thirds of one’s estate (or full, if one does not include no. 5) among the inheritors in accordance with Sunni Islamic law, and in consultation with a qualified local scholar or Mufti.
7) Signing of the document by both the Will-maker and the relevant witnesses.
Finally, the responsibility of the relatives is that they haste in distributing the estate of the deceased as quick as humanely possible. Being negligent in this regard will be highly sinful. All the inheritors will be jointly responsible for this distribution.
Also, when totalling the deceased’s assets, the inheritors must include every big and small item left behind by the deceased at the time he/she passed away, which includes Properties, house, car, financial instruments, cash, gold, silver, clothes, furniture, etc.
May Allah Almighty forgive our shortcomings and enable us to understand the laws governing the great responsibility of Will-making and inheritance.