TheHalalJournal

Good Will Writing

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Not known to many, writing an Islamic will or wasiyya is a strongly recommended sunnah, or sunnah muakkadah, for every Muslim. In fact, to die without leaving a valid will is a disservice to one’s love ones and the community at large. Unfortunately, many are ignorant of its importance and benefits.

The act of will writing finds support in both the Quran and hadith. A will is a legal document that explains and determines the distribution of one’s estate after the death of the testator (the one who makes a will). Leaving a wasiyya ensures the distribution of one’s assets to his loves ones, and hence safeguards their financial welfares. This document includes bequests and legacies, instructions and admonishments, and assignments of rights. For example, the deceased may want to specify where he wants to be buried or may have requested that two feuding families reconcile after his death as his last wish.

The provisions will be executed after payment of funeral expenses and any outstanding debts, because when a Muslim dies, there are four duties that need to be performed: payment of funeral expenses, payment of his/ her debts, execution of his/ her will, and distribution of the remaining estate amongst the heirs according to Islamic inheritance law or faraid.

An Islamic will facilitates the faraid distribution of assets – and this is what majority of Muslims here do not understand. The existence of faraid does not obliterate the importance of leaving a will. Typically, two thirds of one’s estate will go to relatives according to fixed shares that have been prescribed. However, up to one third of the estate may be bequeathed, through a wasiyya, to someone who is not a relative and thus, not entitled to the inheritance, or perhaps charity, waqf or a project. In this respect, we can see how this financial tool can serve as a flexible way of distributing one’s wealth as one desires.

A Muslim cannot bequest more than one third of his net estate unless the other heirs consent to the bequest. The one-third rule is practised to ensure that dependants are not left destitute.

One who dies without leaving a will is deemed by law to have died ‘intestate’. In such cases, his wealth will be distributed according to the law of the country he resides in. However, the intestate succession law of Western countries is different from Islamic law. Hence, it becomes even more necessary for Muslims residing in the West to write an Islamic will, which is recognised.

In Malaysia, the Islamic inheritance law or faraid determines the allocation of shares among the legal heirs. In terms of procedure, the Shariah court produces a certificate of faraid that determines how the assets should be distributed and also endorses a Shariah-compliant will, if there is one. The civil court would then be asked to grant an order for the distribution of assets.

However, the ball can only start rolling with the appointment of an executor, who may be an individual, several alternatives listed in an order of preference, or even a trustee corporation. For the whole process to go smoothly, a person entrusted with this amanah should be chosen and stated in a will.

In its absence, family members need to agree on a representative – therein lies the danger. Relatives may hold differing opinions on the matter and consequently the assets may remain frozen indefinitely. It is only after a lengthy and tedious process, would the civil court appoint Amanah Raya, a trustee organisation that assists parties in distributing wealth. Ideally, the surviving family should be spared the harrowing experience of protracted legal battles.

According to expert Amir Bahari, the managing director of Amanahibah, an Islamic Property Planning company, the main objective of will-writing is to “pass the amanah of distributing your assets to the next generation, [to] someone you can trust.” This Last Testament allows the testator a chance to “appoint an executor” of his/ her property. This is critical in circumventing the kind of problems mentioned earlier. Apparently, RM15 billion worth of assets are frozen mainly because of family disputes that could have been avoided.

It is important to note that for any Islamic will to be recognised and endorsed by the Shariah court, it must comply with faraid. Hence, those offering will-writing services must have “a solid understanding of faraid,” advises Amir.

Why do the majority of Muslims not leave a will then? When this question was put to Amir, he blames it completely on the lack of education and awareness. The false sense of comfort derived from the fact that the Shariah court will somehow sort things out is rampant. Even those who know of its importance somehow manage to delay writing their wills as well.

To date, the only concrete step the Malaysian government has taken systemically to encourage Islamic will-writing is the Islamic Will Enactment of Selangor 1999. This provides clear guidelines on the Islamic will for practitioners and all who are interested. Unfortunately, according to Nik Mariah Tan Sri Nik Ahmad Kamil of Kamil Hashim Advocates & Solicitors, the other states have not yet come up with similar acts yet. In fact, Amir suggested that there should be a nationwide Will Act to allow standardisation.

The subject of writing one’s Last testament is inextricably linked to death. In our society and many others, the topic of death is considered morbid and distasteful even though the Prophet Muhammad (p.b.u.h.) himself thought of it several times a day. Broaching the taboo subject with the elderly may sometimes be frowned upon. Also, the preparation for death is often linked to spiritual readiness. The element of ‘what happens to our assets?’ is often left out, when in fact, Islam encourages one to think ahead and arrange a Last Testament, a final opportunity to help our loved ones, and right some wrongs if you will.

“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)

Since there is no escaping death, which often arrives unannounced, should not it then be natural for every person to reflect on the changed circumstances loved ones need to face when the time comes? It is perhaps the single most important document one can produce in his/ her lifetime. Hence, it is only wise to seek professional help in this matter to ensure that the document is valid and can stand in a court of law.

A will is, amongst other things, an attempt to influence those circumstances. Leaving a wasiyya is a responsible act, something to be encouraged by all segments of society – the government, the private sector, educators, and individual Muslims alike, since it is of direct relevance for us all.

Benefits of Islamic Will Writing

  1. It is a financial instrument that gives the deceased an opportunity to help someone in dire need of financial assistance but is not a legal heir/ entitled to inherit from him/ her. For example, a Christian widow, children from a previous marriage who are non-Muslims, or an orphaned child.
  2. A will can be used to clarify the nature of joint accounts, or highlight debts owed to a spouse that has not been recorded elsewhere.
  3. It allows the appointment of guardian for one’s children. For example, the deceased may want the children to be cared for by a friend instead of siblings. Relatives for whatever reason may want to contest this in court. However, in most cases, the wish [of the deceased] must be respected in the first instance.
  4. A wasiyya allows a testator to specify a request or wish that may not be in line with faraid, but provides a written document that can be used as a basis of negotiation. Such requests may be morally but not legally binding.
  5. It allows a husband to allocate half of his assets acquired during the marriage (jointly acquired property) to his wife. Under faraid, the wife is only entitled to 12.5 per cent. If there are children, hence a provision stated in the will of the husband can increase his wife’s entitlement and prevent assets from leaving the immediate family to siblings in the absence of children. This is recognised by Shariah law.

**This article was first published in The Halal Journal Jan/Feb 2005 edition, and was written by Zarina Nalla.

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