Bequeathing property in Islam
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- Category: Philosofaith
- Written by M. U. Ndagi
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Bequeathing a property, donation and gift are some of the ways a Muslim may wish to dispose of part of his wealth or estate through a ‘Will’. The Islamic injunction on ‘will’ can be found in Qur’an 2:180-182 where Allah (SWT) mentions that it is allowed when death approaches anyone (if he has any wealth), to make a bequest to parents and next of kin. These verses (Qur’an 2:180-182) were revealed when Allah (SWT) has not yet made any laws in the matter of inheritance. Later in Suratu Nisai (Qur’an 4:11), Allah (SWT) revealed a complete guidance to Muslims concerning inheritance by fixing specific shares for each heir. This, thus, brought about some modifications as it affects bequest by way of defining or limiting testamentary power, but does not in anyway abrogate it.
The Arabic word for ‘Will’ is Wasiyyah’, which is derived from the root-word ‘wasa’ meaning ‘Gift’. The Testator of a will is called “Al-musi’ in Arabic; and the recipient on the other hand is referred to as ‘Al-Musa lahu’. The property or article of bequest is called ‘Al-musa bihi’ in Arabic. ‘Will’ is the act of bequeathing a property by its owner to another contingent at the death of the former.Among the modifications is the fact that bequest can no longer be made in respect of legal Qur’anic heirs including parents and kin who hitherto were mentioned in Qur’an 2:180 as recipients of the property of bequest. Those who will henceforth enjoy the provisions of a bequest should be those who are helpless and are not Qur’anic recipient of inheritance shares. However, a bequest can be made for persons from among the kin who have no share in inheritance. A Muslim is encouraged to make a bequest especially if he fears that his ‘wealthy’ heirs might not use the wealth in Allah’s cause after his death or would use it to disobey Allah (SWT). Yet, one must not make a bequest with a view to decreasing the shares of his heirs whose fixed shares are mentioned in the Qur’an. Bequest cannot also deny any heir of his shares either. The temptation to do so becomes greater when the testator has no children or parents to inherit his property. Such a person under temptation would think that it is better to give out his property through a bequest rather than leaving it to distant relations. This act, of course, is against the spirit of inheritance in Islam. A Muslim who owns a property is given the permission to bequeath his estate to a charitable cause or to anyone who is not among his legal heirs. Allah (SWT) speaks in Qur’an 2:180 about bequest being a duty incumbent upon a Muslim provided the testator leaves sufficient property for his heirs. Imam Bukhari and Imam Muslim both relate on the authority of Ibn Umar (RA) that the Prophet (SAW) said: “It is not right for a Muslim who has property to bequeath, that he should pass two nights without having a ‘will’ with him”. I wonder how many readers of this piece have complied with this hadith.
‘Wasiyyah’ or ‘will’ could be verbal or written. Where a testator is dumb, he is allowed to use signs that are vivid (not ambiguous) and comprehensible. The testator in any case should remember that Allah (SWT) is watching and knows his intentions. The testamentary disposition of a testator extends over only one-third (1/3) of his entire property or estate. The reason for limiting the bequest to one-third of the property is contained in the hadith of the prophet (SAW) that: “One should leave his heirs free from want is better than they should be begging of other people”.
It is reported that Sa’ad bn Abi Waqqas said: “I was taken very ill the year of the conquest of Makkah and felt that I was going to die. The Prophet (SAW) visited me and I asked: ‘O Messenger of Allah (SWT)! I own a good deal of property and I have no heir except my daughter. May I make a “Will” leaving all my property for religious and charitable purpose?’ He (the prophet) replied: ‘No’. I again asked: ‘May I do so with half (1/2) of it?’ He replied: ‘No’. I asked again: ‘May I do so with one-third of it?’ The Prophet (SAW) replied: ‘Make a ‘Will’ disposing 1/3 in that manner because one-third (1/3) is quite enough of the wealth that you possess. Verily, if you die, and leave your heirs rich is better than leaving them poor and begging. Certainly, the money that you spend for the pleasure of Allah (SWT) will be rewarded, even a morsel that you lifted up to your wife’s mouth”.
The wasiyyah takes effect only after the death of the testator. There is consensus among Muslim jurists that the provisions of a wasiyyah (if any was made) will be implemented only after funeral expenses and all the debts owed by the testator had been paid or settled. It is only then the provisions of the wasiyyah can be executed. After the wasiyyah, comes the sharing of what remains of the property or wealth to the heirs. However, if nothing were left of the property after paying for the funeral expenses and debts, which the testator owed, the wasiyyah would have to remain unexecuted.
The conditions for a valid wasiyyah stipulates that the testator (Musi) must be sane, matured, a freeborn (i.e. not a slave), and must have the ability to differentiate between what is good and bad. The provisions of the bequest of an under-aged (not matured) but sane child would be implemented as long as the provisions contained in the wasiyyah are meaningful and useful. The recipient of a bequest (i.e. musa lahu) must be alive at the time of the death of the testator. This is applicable when the testator specifies the recipient of the bequest. But if the recipient is unspecified, the wasiyyah remains valid for implementation even when he no longer exists at the death of the testator. The recipient should not have caused the death of the testator. If such happens, the wasiyyah becomes invalid. Otherwise, people would be tempted to kill testators once they get to know about the contents of a ‘Will’ so that it could be implemented early enough. Bequests could be made in favour of unspecified persons especially when it has to do with award of scholarships to deserving students.
The property of bequest may include the fruits that are yet to be bore by a tree owned by the testator and also his un-born calf that is in the womb of a cow. One is allowed to make a bequest with landed property. He could also make a bequest out of the debt that he is being owed by someone. May Allah (SWT) grant us the will power to make the right bequest at the right time, for the right purpose, and for the right recipients, amin.
Articles
Bequeathing property in Islam
Category: Philosofaith Written by M. U. Ndagi Hits: 862
Bequeathing a property, donation and gift are some of the ways a Muslim may wish to dispose of part of his wealth or estate through a ‘Will’. The Islamic injunction on ‘will’ can be found in Qur’an 2:180-182 where Allah (SWT) mentions that it is allowed when death approaches anyone (if he has any wealth), to make a bequest to parents and next of kin. These verses (Qur’an 2:180-182) were revealed when Allah (SWT) has not yet made any laws in the matter of inheritance. Later in Suratu Nisai (Qur’an 4:11), Allah (SWT) revealed a complete guidance to Muslims concerning inheritance by fixing specific shares for each heir. This, thus, brought about some modifications as it affects bequest by way of defining or limiting testamentary power, but does not in anyway abrogate it.
The Arabic word for ‘Will’ is Wasiyyah’, which is derived from the root-word ‘wasa’ meaning ‘Gift’. The Testator of a will is called “Al-musi’ in Arabic; and the recipient on the other hand is referred to as ‘Al-Musa lahu’. The property or article of bequest is called ‘Al-musa bihi’ in Arabic. ‘Will’ is the act of bequeathing a property by its owner to another contingent at the death of the former.Among the modifications is the fact that bequest can no longer be made in respect of legal Qur’anic heirs including parents and kin who hitherto were mentioned in Qur’an 2:180 as recipients of the property of bequest. Those who will henceforth enjoy the provisions of a bequest should be those who are helpless and are not Qur’anic recipient of inheritance shares. However, a bequest can be made for persons from among the kin who have no share in inheritance. A Muslim is encouraged to make a bequest especially if he fears that his ‘wealthy’ heirs might not use the wealth in Allah’s cause after his death or would use it to disobey Allah (SWT). Yet, one must not make a bequest with a view to decreasing the shares of his heirs whose fixed shares are mentioned in the Qur’an. Bequest cannot also deny any heir of his shares either. The temptation to do so becomes greater when the testator has no children or parents to inherit his property. Such a person under temptation would think that it is better to give out his property through a bequest rather than leaving it to distant relations. This act, of course, is against the spirit of inheritance in Islam. A Muslim who owns a property is given the permission to bequeath his estate to a charitable cause or to anyone who is not among his legal heirs. Allah (SWT) speaks in Qur’an 2:180 about bequest being a duty incumbent upon a Muslim provided the testator leaves sufficient property for his heirs. Imam Bukhari and Imam Muslim both relate on the authority of Ibn Umar (RA) that the Prophet (SAW) said: “It is not right for a Muslim who has property to bequeath, that he should pass two nights without having a ‘will’ with him”. I wonder how many readers of this piece have complied with this hadith.
‘Wasiyyah’ or ‘will’ could be verbal or written. Where a testator is dumb, he is allowed to use signs that are vivid (not ambiguous) and comprehensible. The testator in any case should remember that Allah (SWT) is watching and knows his intentions. The testamentary disposition of a testator extends over only one-third (1/3) of his entire property or estate. The reason for limiting the bequest to one-third of the property is contained in the hadith of the prophet (SAW) that: “One should leave his heirs free from want is better than they should be begging of other people”.
It is reported that Sa’ad bn Abi Waqqas said: “I was taken very ill the year of the conquest of Makkah and felt that I was going to die. The Prophet (SAW) visited me and I asked: ‘O Messenger of Allah (SWT)! I own a good deal of property and I have no heir except my daughter. May I make a “Will” leaving all my property for religious and charitable purpose?’ He (the prophet) replied: ‘No’. I again asked: ‘May I do so with half (1/2) of it?’ He replied: ‘No’. I asked again: ‘May I do so with one-third of it?’ The Prophet (SAW) replied: ‘Make a ‘Will’ disposing 1/3 in that manner because one-third (1/3) is quite enough of the wealth that you possess. Verily, if you die, and leave your heirs rich is better than leaving them poor and begging. Certainly, the money that you spend for the pleasure of Allah (SWT) will be rewarded, even a morsel that you lifted up to your wife’s mouth”.
The wasiyyah takes effect only after the death of the testator. There is consensus among Muslim jurists that the provisions of a wasiyyah (if any was made) will be implemented only after funeral expenses and all the debts owed by the testator had been paid or settled. It is only then the provisions of the wasiyyah can be executed. After the wasiyyah, comes the sharing of what remains of the property or wealth to the heirs. However, if nothing were left of the property after paying for the funeral expenses and debts, which the testator owed, the wasiyyah would have to remain unexecuted.
The conditions for a valid wasiyyah stipulates that the testator (Musi) must be sane, matured, a freeborn (i.e. not a slave), and must have the ability to differentiate between what is good and bad. The provisions of the bequest of an under-aged (not matured) but sane child would be implemented as long as the provisions contained in the wasiyyah are meaningful and useful. The recipient of a bequest (i.e. musa lahu) must be alive at the time of the death of the testator. This is applicable when the testator specifies the recipient of the bequest. But if the recipient is unspecified, the wasiyyah remains valid for implementation even when he no longer exists at the death of the testator. The recipient should not have caused the death of the testator. If such happens, the wasiyyah becomes invalid. Otherwise, people would be tempted to kill testators once they get to know about the contents of a ‘Will’ so that it could be implemented early enough. Bequests could be made in favour of unspecified persons especially when it has to do with award of scholarships to deserving students.
The property of bequest may include the fruits that are yet to be bore by a tree owned by the testator and also his un-born calf that is in the womb of a cow. One is allowed to make a bequest with landed property. He could also make a bequest out of the debt that he is being owed by someone. May Allah (SWT) grant us the will power to make the right bequest at the right time, for the right purpose, and for the right recipients, amin.