What Does Is Islam Say About Wills And Testaments?

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“From what is left by parents and those nearest related-there is a share for men and a share for women – whether the property be large or small. A share made fardh (compulsory).”

(Qur’an: Surah Al Nisa 4:7).

“It is not permissible for any Muslim who has anything to bequeath that s/he may pass even two nights without having his/her last will and testament written and kept ready with him/her” – (Hadith: Reported by Abdullah ibn Umar- Mishkat)

It becomes incumbent on any Muslim who has assets in his/her name to draw up a will so that the beneficiaries and/or heirs are clearly stated and leave no room for uncertainties, disputes, bitterness, and family breakdowns afterwards as is the case with so many families today. This is a duty not to be neglected because life and death has no guarantees. Life is short. Today we may be here. Tomorrow we may be gone. Imagine the distress that is caused to the widow, or children, or leaving a near and dear destitute by not clarifying your will and by not doing it according to Shari’ah requirements.

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 may 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 Quran. 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.

The beauty of Shariah is its simplicity and certainty.. When you are writing your Islamic Will, you do not have to try and figure out which of your relatives will still be alive when you die in order to make sure that they will receive something. 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 of Allah (Allah bless him & give him peace) said in his historic sermon (khutba) of his farewell hajj (haj al-Wada): “Verily Allah has given each rightful person their right, thus there is no bequest in favour of a inheritor. (Sunan Tirmidhi, no: 2120, narrated by Sayyiduna Abu Umama al-Bahili)

The meaning of this Hadith is that Allah Almighty has already fixed and allotted the shares of those who are entitled to inherit from one’s estate. As such, if one was to make a Will in their favour, one will be going against the shares fixed for them in the Quran and Sunnah.

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.

In conclusion, be sure to make your will strictly according to Islamic rules to save yourself from the wrath of Allah. If you have already executed a will that is not compliant, it is recommended that you execute a new Shari’ah compliant will. Furthermore, if you are an heir to a will that was not executed according to Shari’ah, and you are aware of it, it then becomes your duty to rectify the matter so as to give all the Qur’anic heirs their due share.

Attached is a Sample Will and a Sharia Inheritance Distribution schedule that will guide you in dividing a person’s property amongst the stated beneficiaries

Faraid Law

 

Note: To use this table, the reader should first ascertain whether the deceased left a wife or husband, and if she or he survived, should look under the appropriate heading. Only in default of either should search be made under “sons and daughters”, “father and mother” and the rest, and then in the order given in the first margin. In each instance it is supposed that there are no nearer relations than those named.

If a person dies leaving

Division of Real and Personal Property

WIFE:  
Wife and no relations ¼ to wife, ¾ to the Bait-ul-mal(1)
Wife and son (sons) 1/8 to wife, rest to son (sons equally)
Wife, son and daughter 1/8 to wife, 7/12 to son, 7/24 to daughter (2)
Wife, two sons and two daughters 1/8 to wife, 7/24 to each son and 7/48 to each daughter. (2)
Wife and one daughter 1/8 to wife, ½ to daughter and 3/8 to Bait-ul-mal.
Wife and daughters 1/8 to wife, 2/3 to daughters and 5/24 to Bait-ul mal
Wife, daughter and one son’s son (h.l.s.) 1/8 to wife, ½ to daughter, rest to son’s son
Wife, daughters and one son’s son (h.l.s.) 1/8 to wife, 2/3 to daughters equally, rest to son’s son
Wife, daughter, one son’s son and one son’s daughter 1/8 to wife, 1/3 to daughter, ¼ to son’s son and 1/8 to son’s daughter. (3)
Wife, daughter and son’s daughters 1/8 to wife, ½ to daughter, 1/6 to son’s daughters equally and rest to the Bait-ul-mal.
Wife, daughters and one son’s daughter 1/8 to wife, 2/3 to daughters equally and rest to Bait-ul-mal
Wife, daughter and three full brothers 1/8 to wife, ½ to daughters, 1/8 to each brother.
Wife, daughters and two paternal uncles 1/8 to wife, 2/3 to daughters equally and 5/48 to each uncle.
Wife, daughters and four true grandmothers 1/8 to wife, 2/3 to daughters equally and 1/6 to the grandmothers equally and the rest to the Bait-ul-mal.
Wife, son and father (h.h.s.) 1/8 to wife, ¼ to father, rest to son.
Wife, daughter and mother 1/8 to wife, 1/6 to mother and ½ to daughter. Rest to Bait-ul-mal.
Wife, daughters, father and mother 3/27 to wife, 4/27 each to father and mother, 16/27 to daughters (4)
Wife, father and mother ¼ to wife, ½ to father and ¼ to mother (5)
Wife, four full brothers and two full sisters ¼ to wife, 6/40 to each brother and 3/40 to each sister. (6)
Wife, four true grandmothers and two paternal uncles ¼ to wife, 1/24 to each grandmother and 7/24 to each uncle.
Wife, mother and true grandmother ¼ to wife, 1/3 to mother and the residue 5/12 to true grandmother.
Wife, mother, full sister, uterine brother and sister, consanguine brother and consanguine sister 3/15 to wife, 2/15 to mother, 6/15 to full sister and 4/15 equally between the uterine brother and uterine sister. The consanguine brother and consanguine sister get no shares. (7)
Wife, mother, two sons 1/8 to wife, 1/6 to mother and residue 34/48 equally to sons
Wife, daughter, two paternal uncles 1/8 to wife, ½ to daughter and the residue 6/16 to the uncles equally.

Wife, uterine sister, four sons of brother, son of uncle

1/8 to wife, 1/6 to uterine sister and the residue 28/48 to the sons of brother equally.. Son of uncle gets nothing.

Wife, mother, sister

3/13 to wife, 4/13 to mother and 6/13 to sister. (7)

Wife, mother, 2 sisters

3/13 share to wife, 2/13 share to mother and 8/13 shares to sisters equally. (7)

Wife, two daughters, fathers mother

1/8 to wife, 2/3 equally to daughters, 1/6 to mother and the residue 1/24 to Bait-ul mal.

 

(1) Re Mutchilim [1960] M.L.J. 25.
(2) The daughters in such case being residuaries with the son.
(3) The son’s daughters being residuary with the son’s son.
(4) An example of the doctrine of aul or increase.
(5) The mother gets 1/3 of ¾ (that is after deducting the wife’s share). This follows a decision of the Caliph Umar.
(6) The brothers and the sisters are residuaries.
(7) An example of aul.

If a person dies leaving

Division of Real and Personal Property

HUSBAND:

 

Husband and no relation

½ to husband and balance to Bait-ul-mal

Husband and son (sons)

¼ to husband, rest to son (sons equally).

Husband, son and daughter

¼ to husband, ½ to son, ¼ to daughter.

Husband, two sons and two daughters

¼ to husband, ¼ to each son, 1/8 to each daughter.

Husband and one daughter

¼ to husband, ½ to daughter and rest to State.

Husband and daughters

¼ to husband, 2/3 to the daughters and rest to State.

Husband, daughter and one son’s son (h.l.s.)

¼ to husband, ½ to daughter and rest to son’s son.

Husband, daughters and one son’s son

¼ to husband, 2/3 to daughters equally, 1/12 to son’s son (h.l.s.)

Husband and father

½ to husband and ½ to father.

Husband, daughter, one son’s son and one son’s daughter

¼ to husband, ½ to daughter, 2/12 to son’s son and 1/12 to son’s daughter. (8)

Husband, daughter and three full brothers

¼ to husband, ½ to daughter, rest to brothers equally.

Husband, daughters and two paternal uncles

¼ to husband, 2/3 to daughters equally and 1/12 to uncles equally.

Husband, daughter and true grandmothers

¼ to husband, ½ to daughter, 1/6 to grandmothers equally. Rest to State.

Husband, son and father (h.l.s.)

¼ to husband, 1/6 to father, rest to son.

Husband, daughter and father

¼ to husband, ½ to daughters, rest to father.

Husband, daughters and mother

3/13 to husband, 2/13 to mother, 8/13 to daughters equally. (9)

Husband, daughters, father and mother

3/15 to husband, 8/15 to daughters and 2/15 each to father and mother. (10)

Husband, daughter, mother, father, son’s son and son’s daughter

6/13 to father, 3/13 to husband, 2/13 to mother and 2/13 to father. The son’s son and son’s daughter are excluded. (10)

Husband, daughter and paternal uncle

¼ to husband, ½ to daughter and ¼ to paternal uncle.

Husband, daughter, son’s daughter and two full sisters

¼ to husband, ½ to daughter, 1/6 to son’s daughter and 1/12 share equally to sisters. (11)

Husband, daughter, son’s daughter, one full sister and one consanguine sister

¼ to husband, ½ to daughter, 1/6 to son’s daughter and 1/12 to full sister. Consanguine sister gets nothing. (11)

Husband, daughter, son’s daughter, two uterine sisters

¼ to husband, ½ to daughter, 1/6 to son’s daughter. Residue to Bait-ul-mal.

Husband, daughter, father, mother, son’s son and son’s daughter

3/13 to husband, 6/13 to daughter, 2/13 each to father and mother. (10)

Husband, father and mother

½ to husband, 1/6 to mother, rest to father. (12)

Husband, father, mother and two daughters

3/15 share to husband, 2/15 to father, 2/15 to mother and 8/15 to daughters equally. (10)

Husband, mother and three full sisters

½ to husband, 1/6 to mother, 2/3 to sisters equally.

Husband, mother, full sister, consanguine sister

3/8 to husband, 1/8 to mother, 3/8 to full sister, 1/8 to consanguine sister. (10)

Husband, two full brothers and three full sisters

½ to husband, 2/14 to each bother and 1/14 to each sister.(13)

Husband, mother, full brother and two uterine sisters

½ share to husband, 1/6 to mother and the balance of 1/3 between the two uterine sisters and the full brother. (14)

Husband and daughters of two daughters

½ to husband and rest to Bait-ul-mal.

Husband, mother, sister and grandfather

Husband 3/9, mother 2/9 sister 4/27, father’s father 8/27. (15)

Husband, mother, grandfather, one consanguine brother, one or more uterine brothers.

Husband ½, mother 1/6, grandfather 1/6, consanguine brother 1/6, uterine brother excluded. (16)

 

(8) The son’s son and son’s daughter are residuaries.
(9) Example of aul or increase.
(10) Examples of aul or increase
(11) In these cases the daughter and son’s daughter get their Quranic shares while the sister takes as residuary.
(12) The mother gets 1/3 of ½ (that is after deducting the husband’s share).
(13) The brothers and sisters are residuaries.
(14) This is the case of himariyya or musharaka. The full brother and the uterine sisters share the 1/3 share. See Fitzgerald Muhammadan Law p.135 and Nawawi Supra, p.250.
(15) This is the case of Al-akdariya – see Tyabji Muhammadan Law (3rd Edn.) p.874 and Fitzgerald Muhammadan Law p.128 and Nawawi p.253 Supra, (p.22 supra)
(16) This is the case of al-Malikia – see Fitzgerald p.128.

If a person dies leaving

Division of Real and Personal Property

SONS AND DAUGHTERS:

 

One son and no other relations

All to son

One daughter

½ to daughter and rest to State.

Daughters

2/3 to daughters equally and rest to State

Sons and daughters

Equally between all sons and daughters, but so that the share of each son is double that of each daughter.

One son and son’s son or son’s daughters

All to son.

One son and father (or mother)

1/6 to father (or mother) rest to son.

One son, father and mother

1/6 to each father and mother, rest to son.

One daughter and son’s son

½ to daughter, rest to son’s son

One daughter, son’s son and son’s daughter

½ to daughter, 2/6 to son’s son and 1/6 to son’s daughter

Daughters and son’s son

2/3 to daughters equally, rest to son’s son

One daughter, one son’s daughter, and one full brother

½ to daughter, 1/6 to son’s daughter, rest to full brother.

Daughters, one son’s daughter and one full brother

2/3 to daughter and rest to full brother.

Daughters and son’s daughters

2/3 to daughter and rest to Bait-ul-mal (son’s daughters excluded unless there is a lineal male descendant of the same or lower degree).

Daughter and father

½ to daughter and ½ to father (1/6 as Quranic heir and 1/3 as agnatic heir).

Daughters and father

2/3 to daughters equally and rest to father

Daughters, son’s daughters and father

2/3 to daughter, rest to father. (17)

One daughter, father and mother

½ to daughter, 1/6 to mother, rest to father

One daughter, mother, four full brothers

½ to daughter, 1/6 to mother, 1/12 to each brother.

One daughter and mother

½ to daughter, ¼ to mother and rest to Bait-ul-mal.

Daughters and mother

2/3 to daughters equally, 1/5 to mother and rest to Bait-ul-mal.

Daughters, father, mother and son’s son

2/3 to daughters equally, 1/6 each to father and mother, nothing to son’s son there being no residue.

Daughters and four paternal uncles

2/3 to daughters equally, 1/12 to each uncle

Daughter (son’s daughter) and full (consanguine) sister

½ to daughter (son’s daughter) and ½ to full (consanguine) sister.

Daughters (son’s daughters) and full (consanguine) sisters

2/3 to daughters (son’s daughter), and 1/3 to full (consanguine) sister.

Daughters, four true grandmothers and six paternal uncles

2/3 to daughters equally, 1/6 to grandmothers equally (i.e. 1/24 each) and 1/36 to each uncle.

Two daughters, one consanguine sister, one brother’s son

2/3 to two daughters and 1/3 to sister. Brother’s son gets nothing

Two daughters, a son’s daughter and a son’s son

2/3 to daughters, 1/9 to son’s daughter and 2/9 to son’s son. (18)

Two daughters, a son’s daughter and a son’s son’s son

2/3 to daughters, 1/9 to son’s daughter and 2/9 to son’s son. (18)

Two daughters of a son, daughter of son’s son, son of son’s son’s son’

2/3 to daughters equally, 1/9 to daughter of son’s son and 2/9 to son of son’s son’s son.. (20)

Son’s daughter, daughter’s son and brother

½ share to son’s daughter and ½ share to brother. Daughter’s son gets nothing.

Son’s sons and son’s daughters (of same degree)

Equally between son’s son and son’s daughters but so that the share of each of the former is double of each of the latter. (19)

Son’s daughters and son’s son’s son

2/3 to son’s daughters, rest to great-grandsons equally

Son’s daughter and son’s son’s daughter

½ to son’s daughter and 1/6 to son’s son’s daughter and the rest to the Bait-ul-mal. (20)

 

(17) There is a doubt whether the son’s daughters (who are excluded as Quranic heirs) are nevertheless entitled to take as residuaries together with the agnatic ascendant or collateral. See Fitzgerald Muhammadan Law, p.124.
(18) In all these cases, as there are two daughters the son’s daughter cannot inherit as Quranic heir. She therefore takes as an agnatic heir and shares the residu with the lower son’s son.
(19) The son’s daughter is a residuary with an equal son’s son.
(20) As there is a “nearer” daughter, the share of the son’s son’s daughter is 1/6 that is the remainder of the 2/3 share of daughters.

If a person dies leaving

Division of Real and Personal Property

FATHER AND MOTHER:  
Father and no other relations

All to father..

Father and mother 2/3 to father, 1/3 to mother
Father, full brothers and sisters All to father.
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