The significance of Al-Wasiyyah (Will)
The significance of Al-Wasiyyah is clear from the following two hadith:
“It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a Will about it.” (Sahih Al-Bukhari)
Sayyiduna Abu Huraira (RA) narrated that Prophet Muhammed ﷺ said that – “A man may do good deeds for seventy years but if he acts unjustly when he leaves his last testament, the wickedness of his deed will be sealed upon him, and he will enter the Fire. If (on the other hand), a man acts wickedly for seventy years but is just in his last will and testament, the goodness of his deed will be sealed upon him, and he will enter the Garden.” (Ahmad and Ibn Majah)
Basic principles of Islamic inheritance
Unlike a UK Will, in an Islamic Will the Testator is restricted in certain aspects when gifting his estate. These restrictions include:
- Al-Musi cannot gift more than ⅓ of his net estate unless the established heirs’ (see point 2) consent to the gift of the estate or there are no legal heirs at all, or the only legal heir is the spouse.
It was narrated by Sayyiduna Sa’d Ibn Abi Waqqas (RA): “I was stricken by an ailment that led me to the verge of death. The prophet came to pay me a visit. I said, “O Allah’s Apostle! I have much property and no heir except my single daughter. Shall I give two-thirds of my property in charity?” He said, “No.” I said, “Half of it?” He said, “No.” I said, “One-third of it?” He said, “You may do so, though one-third is also too much, for it is better for you to leave your offspring wealthy than to leave them poor, asking others for help.” (Sahih Al-Bukhari, Sahih Muslim, Muwatta, Tirmidhi and Ibn Majah).
- Unlike in English Law where Al-Musi can distribute their estate to whom they desire, in Islamic Law, Allah has already ordained the shares which shall pass in accordance with His commands in the Qur’an and the Sunnah. Allah stipulates who the established heirs known in Arabic as the Zawil Furood, are in Surah Nisa, Ayahs 11-13. Allah affirms with His statement “[This is] an ordinance from Allah, and Allah is Knowing and Forbearing”. As you can see from Allah’s statement, one cannot bequest beyond what Allah has ordered. The categories of Zawil Furood shall follow. All of the Islamic jurists agree that intentional or unjustifiable killing of Al-Musi would exclude a person from inheritance.
- Al-Musi cannot make a Wasiyyah (Gift or legacy from the ⅓) in favour of a Zawil Furood unless all other Zawil agree to this bequest passing. So, a father who is a Zawil Furood cannot receive a bequest because he is already going to receive an established share but if the other living established heirs accept the bequeath, then they can benefit from this
- The assets of the Al-Musi MUST be distributed in the following order of priority:
- Funeral expenses – All funeral expenses must be paid;
- Debts – Any outstanding debts must be repaid;
- Even if there are not enough monies in the estate, the debtor is still owed their money unless they forgive this. The family can choose to repay the debt on behalf of the deceased, but this isn’t a legal entitlement. If any debts are unpaid, then this matter is with Allah and the deceased;
- Wasiyyah (gifts and legacies)– Any Wasiyyah (gifts and legacies) should be honoured as long as it does not exceed one-third of the value of the net asset; and
- The remaining assets must be distributed to the Zawil Furood according to Quranic teachings.
Why make an Islamic Will?
To fulfil an essential religious duty.
In the event that you die without leaving a Will you are considered to have died ‘intestate’ in English Law and so your wealth will be distributed in accordance with the English rules of intestacy – which do not apply the same criteria as those laid down by the Qur’an and Prophetic teachings. This will in turn make one sinful and negligent in fulfilling the commands of Allah and His messenger ﷺ.
What to consider when making your Will
One of the most important parts of making an Islamic Will and one of the greatest contrasts to a UK Will is to open with the declaration of Islam “I testify that there is no deity worthy of worship except Allah, and Muhammad ﷺ is His final Messenger”. Along with the testimony of faith, one should praise Allah, His Messenger ﷺ and declare his intentions and belief in Islam.
Decide on funeral and burial arrangements
Al-Musi should specify that they would like their funeral and burial arrangements to be carried out in accordance with the practices of Islam. These include:
- Burial rituals to take place as soon as possible and having the body released for burial immediately after death without being subjected to a routine post-mortem examination because the Prophet Muhammad ﷺ said, “Breaking a dead man’s bone is like breaking it when he is alive.” (Sunan Abu Dawud);
- The bathing of the dead body (known as Ghusl in Arabic);
- Shrouding the body with a white cloth (known as Kafan in Arabic);
- Collective funeral prayer (known as Al-Janazah in Arabic)
- Burial of the dead body in a grave determined/purchased by Al-Musi. If not already purchased, then the Executors and family should arrange this.
Appointment of Executor(s) (Al-Wasi)
Al-Wasi (the Executor) of the Will is the one who deals with the administration of the Estate. The Executor has to carry out the wishes of Al-Musi according to Islamic law. Ideally, Al-Musi should select an Al-Wasi who is trustworthy and truthful. Al-Musi may appoint more than one Al-Wasi, male or female and Al-Musi can choose how Al-Wasi will act.
Al-Wasi will need to apply for a Grant of Probate which is a legal document that will authorise the Al-Wasi to distribute the assets in accordance with Al-Wasiyyah. If your Al-Wasi do not know how to calculate the Qur’anic shares, they can either find an ‘Aalim’ (Islamic Scholar) who has this knowledge to assist them. Goodwills provide probate services for Al-Wasiyyah.
Appointment of a guardian for children
Choosing what is best for your child is an essential obligation in Islam. This is particularly significant for those who have non-Muslim relatives and want their children to be brought up with Islamic teachings. The person to be appointed as a guardian for the child should be whoever is most appropriate for the benefit and care of the child.
Decide on any Wasiyyah (gifts and legacies)
After the payment of any taxes, debts, and funeral and administration expenses, one-third of the estate can be left to anyone – this may include friends and family who are not entitled to inherit under Shari’a, as well as charities.
Sayyiduna Abu Hurairah (RA) said that the Messenger of Allah (saw) said, “When a person dies, his deeds come to an end except for three: Sadaqah Jariyah (a continuous charity), or knowledge from which benefit is gained, or a righteous child who prays for him”. (Sahih Muslim)
The Residuary Estate (Al-Tareeka)
The remainder of the estate is distributed in specific shares to the Zawil Furood. The Fixed shares under Islamic law may not be changed. The only changes to these shares occur when certain circumstances necessitate it as we will discuss below.
Who are these ‘Zawil Furood (Established Inheritors)’ and how does it all work?
The categories of those who inherit a set share include:
Grandfather (paternal) Grandmother (paternal & maternal)
Half Brother (maternal) Half-sister (maternal)
General guidelines to distributing the shares
- The closest relatives (husband, wife, son daughter, father, and mother) will always inherit a share and will always have precedence over distant relatives (as we shall see below); or
- In the absence of the closest relatives, the more distant relatives (such as grandparents and grandchildren, half-siblings) will then be entitled to inherit fixed shares.
The above categories have been given set shares by the Qur’an and Sunnah and the shares will often fall into 6 which are either ¼, ½, ⅛, ⅓, ⅔ or 1/6.
Now, this is where it can get complicated because not all of the above categories will inherit depending on if anyone else from that category is alive. For instance, if the father is alive, then the grandfather will not inherit.
Another situation which can arise is that a share which a person is entitled to can vary depending on if anyone else from another category is alive or multiple people from the same category are alive. For instance, a deceased’s husband will receive ½ of the estate but if any children of the deceased are also alive, then the husband will receive 1/4. Similarly, if there is one daughter alive, then she receives a ⅓, however, if there are 2 or more daughters alive, then they inherit ⅔ between them (both shares only occur if the deceased’s son(s) is not alive).
But doesn’t the son inherit double what daughters inherit
This situation is very complex, and it is advised that an Executor dealing with an estate learns thoroughly the correct rulings of inheritance or seeks our assistance or a Scholar who has comprehensive knowledge of the religion. Goodwills has specialist team who deal with Islamic inheritance.
The Residuaries (‘Asaba)
Although we have stated that the Zawil Furood are the established inheritors of an estate, there is also another category of inheritors who are privy to benefit from the Tareeka. The relatives in this category are known as ‘Asaba. The Asaba will inherit whatever is remaining in the Tareeka (after the Zawil Furood take their share) or if there is no Zawil Furood, then they will inherit the entire Tareeka. The complexity here is, where there is a particular ‘Asaba, they will make those who are directly associated with them into ‘Asaba as well. For example, if a deceased’s son is alive with his sisters (the deceased’s daughters), then the daughters will no longer inherit ⅓ or ⅔ as Zawil Furood, but they will now inherit half of their brother’s share as ‘Asaba. This is also the case with the deceased’s brothers and half-brothers, they will turn their respective sisters (the deceased’s sisters and half-sisters) into ‘Asaba and they will inherit half of their respective brothers’ share.
The only time a category from the Zawil Furood will become an ‘Asaba in the case of a female is when a deceased’s daughter is alive with the deceased’s sister. The daughter will inherit her share as Zawil Furood, but the sister will now become categorised as ‘Asaba so she will get the remainder of the estate (but only if the sister’s respective brother and deceased’s son are not alive).
One last note relating to ‘Asaba is that there are 4 categories of ‘Asaba and each will inherit the remainder of the Tareeka. These are:
- The deceased’s Son and every generation of issue that follows (grandson and down from the medium of a male, so daughters’ children and so on are not included etc.);
- The deceased’s Father and every paternal generation above (grandfather and above etc.);
- The deceased’s Brother and every generation below (nephews and below etc.); and
- The deceased’s Uncle and every generation below (cousins and below etc.)
Please note that the categories are ranked in strength of who benefits, so the persons’ category 1 have the strongest claim to inherit, then 2, 3 and finally 4. For example, if the deceased’s son (category 1), father (category 2), brother (category 3) and uncle (category 4) are all alive, then the son will inherit, and the others will not inherit due being from lower category. If there is no son, then the father will inherit, and the others won’t and so on. However, it is important to note that a person from a further generation in the same category will also not inherit, for example, the deceased’s grandchildren will not inherit if the deceased’s son is alive despite being from category 1 as well.
However an expansion to the fact that closer generation takes precedence is that this priority also applies between different categories, so if the deceased grandson is alive and so is the father, then although the grandson is in category 1, it is, in fact, the deceased’s father who will inherit because he is closer in generation. The ranking of categories (from 1-4) only apply when each potential ‘Asaba are from an equally close or distant generation (e.g. son with father, grandson with grandfather etc.)
But don’t worry if all the above is getting complex and difficult to understand. We here at Goodwills will go over every step with you and discuss each share in as much detail.
But what if there are too many shares to distribute?
Islamic inheritance is comprehensive, and the scholars have always been able to come to a solution to ensure shares go in accordance to how Allah has ordained. If there are, several inheritors and their shares equal more than 1, meaning there are too many shares to distribute, then each of the beneficiary’s share will be reduced proportionately. This type of scenario is called Al- ‘Awl’. An example of this was established by Sayyiduna Umar (RA) during his reign as Khalifah.
A typical example of this will be if a deceased left her husband and 2 sisters.
Husband 2 Sisters Lowest Common Denominator (Makhraj)
½ ⅔ 6
Husband receives 3/6
Sisters received 4/6
As you can see, we have a case where the total shares are 7/6 and therefore the distribution cannot be established. In order to rectify this, we simply change to the Makhraj to 7 and the shares fit into place and both have been equally and fairly reduced.
But what if there are not enough shares to distributed
Now if the opposite to Al-Awl happens and the total shares of the Zawil Furood falls below 1, and there is no ‘Asaba to take the remainder of the estate, meaning after the shares are distributed, there will be excess funds left in the estate that will need to be distributed. In this case, each of the beneficiary’s share will be increased proportionately through a process called Radd (redistribution). Every member of the Zawil Furood who received a share will receive the remainder in the proportions that they are inheriting. However, Radd does not apply to spouses except when there are no other relatives from any other categories alive (please note there are more categories beyond ‘Asaba but these can get more complex so these can be advised upon if the scenarios ever arise). All other categories of Zawil Furood will receive Radd. If spouses are alive with other Zawil Furood, then the spouse will only take their share and the other surviving Zawil Furood will take their share and whatever proportionately the extra amount via Radd
An example of an instance where Radd occurs is if the deceased passes away leaving only 2 daughters.
2 Daughters Lowest Common Denominator (Makhraj)
As we can see there is still a third remaining to be distributed and no Wasiyyah (gift and legacy) has been made. Using the process of Radd, we simply change to the Makhraj to 2 and the shares fit into place and both daughters will receive an equally increased amount.
Storage of the Islamic Will
It is important that your Islamic Will is safely stored and this is also a service that Goodwills are able to offer for you. Wills are frequently lost and, once you have gone to the trouble of making a Will, it is strongly recommended that it is stored professionally in a flood proof, fire proof and secure environment.