Importance of Wasiyya (Will) in Islam

Topics: Sharia, Law, Muhammad Pages: 5 (1627 words) Published: May 12, 2013

When a Muslim dies there are four duties which need to be performed. These are: 1. payment of funeral expenses
2. payment of his/her debts
3. execution his/her will
4. distribution of the remaining estate amongst the heirs according to Shariah. The Islamic will is called al-wasiyya. A will is a transaction which comes into operation after the testator’s death. The will is executed after payment of funeral expenses and any outstanding debts. The provisions for making the wills have also been sanctioned by Quran and the traditions of the Prophet (pbuh). The importance of the Islamic will (wasiyya) 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) ➢ "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) Definition of Will:

A 'Will or Testament' is a document or an instrument, which declares or contains the intention of the owner of the property as to how his property is to be disposed of (distributed) after his/her death. The will takes effect on the death of the person making it. It can be revoked by the maker, before his death. Legator: The person who makes/creates a will is called 'Legator'. Legatee: The person/persons in whose favour the will is created is called 'Legatee', Legacy: The subject matter of the will is called 'Legacy'. It is the property to be distributed. Acceptance of a Will:

Legatee will accept the will after the death of legator. So, it is clear that the legatee should be in existence at the time of the legator’s death. If legatee dies before the death of legator, the will fails. This is called the lapse of legacy. Where a will lapses because the legatee does not survive the legator, the property given under the will is not given to the heirs of the legatee rather it remains under the possession of the legator as though no will was made at all. Here it is pertinent to mark that in such type of cases, the will automatically fails. Whether the testator revokes it or not, it seems to be revoked. Where a will has been made to two or more legatees jointly without specifying their shares and, one of such legatee dies before the testator’s death, the whole property is given to the surviving legatee. But if their shares are specified, the surviving legatee gets only his own share; the share of the predeceased legatee reverts back to the legator’s heirs.[1] Under the Shia Law, the will does not lapse, if the legatee dies before legator’s death rather the possession of the property under the will goes to the legal heirs of the legatee after the death of the legator.[2] Where the legatee has no heirs at all, the will then only lapses and the property remains with the testator. However, as a legator is always free to revoke a will anytime during his life, he may revoke it when he finds that the legatee is now dead.

Revocation of a Will:
As the free consent of both the legator and legatee is needed to make a complete will, both of them have the option to revoke or refuse the will. Legator, during his lifetime, can revoke the will. Accordingly, the legatee, after the death of the legator- when the question of accepting the will comes, can accept or refuse to have the ownership of the property. If the legatee does not give his consent for taking the property given to him, i.e. if he declines to become the owner of the bequeathed property, his title to the property is not complete.

Formalities of Wills:
Muslim law requires no specific formalities for creation of a will. It may be made in...
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