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The need for Islamic wills

SIMPLY put, an Islamic will or wasiat is somewhat similar to a conventional will, save for the fact that it must comply strictly with Islamic precepts. It is a testamentary disposition made by a Muslim whereupon his death and in accordance with those precepts, up to a third of his assets can devolve upon persons or other legal entities who are not Faraid heirs of his choosing. This would include the deceased's non-Muslim parents and family, if applicable.

Should such bequest exceed the ont third rule, that excess must be approved by the deceased's living Faraid heirs, which includes his Muslim parents, spouses and children, who cannot be deprived nor excluded from rightfully inheriting under the deceased's estate unless of course such heirs voluntarily relinquish their share after the deceased's death and not before.

From a religious standpoint, no Muslim can be compelled to make a wasiat though pursuant to the following Prophetic tradition (Sunnah), it is nevertheless highly encouraged.

Narrrated by Abdullah bin Umar : The Prophet S.A.W. had said,

"It is not permissible for any Muslim who has something to will to stay for two nights without having his last Will and Testament written and kept ready with him."

- exerpt from Sahih Al-Bukhari vol IV p. 1

Despite its non-obligatory status coupled with the fact that the Holy Quran has extensively provided on how a deceased's estate is to be distributed in the absence of a will, why then is there still an emphasis on writing one?

To understand that need, it is therefore necessary to examine some probable scenarios that may warrant the drawing of a wasiat.

Consider the following scenario. As with civil estate matters, all assets are frozen upon the death of a Muslim. To unlock and deal with the deceased's assets, the first step must be addressed, that is the appointment of a potential administrator with proper authority, either through the High Court or relevant land office, as the case may be, so that he can in due course manage those assets in question.

But before that, the appointment of an administrator must firstly be agreed upon by all the Faraid heirs who are basically the recognisable heirs under the Law of Islamic Inheritance.

It is not unheard of where just the question of appointment becomes needlessly protracted with indecisions and squabbles amongst family members which can leave the deceased's estate hanging in virtual limbo for years on end. In the meantime, members beget new offsprings and later depart the world, leaving a host of new heirs to lay more fractional claims that make it difficult for assets such as landed property to be disposed of.

By having a wasiat, such deadlock is averted as the deceased had already in his lifetime appointed a trusted person as Executor to manage his estate upon his demise.

The second scenario relates to adopted children. As they do not come within the ambit and definition of Faraid heirs, they are not entitled to naturally inherit from their adoptive parents should either or both of them pass away. To exacerbate that grief, they are at times sadly ignored by their surviving adoptive siblings for support.

Once again by having a wasiat, that fear of a possible neglect can be prevented altogether where up to a 3rd of the deceased's total assets can be apportioned to provide and care for such children thus freeing them in turn from having the need to be unduly dependent on others for material sustenance.

The third likely scenario is where a person employs a wasiat as a vehicle for creating an enduring charity so that even in death, his wealth continues to avail him in the afterlife as the living benefits from its use in this.

The fact of the matter is that there are perhaps countless scenarios which may necessitate the writing of a wasiat but perhaps the best of reasons for doing so is that it does provide an effective and expedient solution to putting a closure on all the deceased's temporal affairs.

At the end of the day how we plan for our lives and for those we leave behind can in themselves be acts of worship and the best of mankind are those who have pleased Allah in doing so.

* Article contributed by Jasmin Jamaluddin, General Manager of as-Salihin Trustee Berhad. For further information, visit www.as-salihin.com or email to general@as-salihin.com.

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