Rules regarding Will (Wasiyyat)
2703. A Will is a commendation of a person to direct that after his death, a certain task be completed for him, or he says that after his death a portion of his property be given in ownership of someone, or that the ownership of his property be transferred to someone, or that it be spent for charitable purposes, or that he appoints someone as guardian of his children and dependents. A person who is to give effect to a Will is called Wasi (executor).
2704. If a person who is dumb, can make himself understood by means of signs, he can Will for anything he likes; however, a person who can speak, as per precautionary measures, should not rely on a Will made by means of signs or a written note.
2705. If a written paper is found, signed and sealed by a deceased person, and if it is known or conveyed that he wrote it as a Will, as per obligatory precaution, it should be acted upon till one – third of his property, however, regarding the share of a minor heir this precautionary measure should be avoided, but after the minor becomes Baligh, this precaution should not be avoided any further. But if it is known that it was not his intention to make any Will, and that he had simply made some notes for a Will to be written later, as per obligatory precaution, it should be acted upon, and regarding the share of the minor heirs, precautionary measures should not be avoided.
2706. A person making a Will should be Baligh (mature), and the Will must have been made with free will and choice, and he should not be a feeble – minded, one who squanders his property. However, being Baligh is not the condition for being the Will valid, it is sufficient, if a child of ten years of age knows the wellbeing of the people and the benefits of the charity, is liable to make a Will.
2707. If a person with the intention of committing suicide for example, injures himself, or takes a poison, because of which his death becomes certain or probable, makes a Will that a certain part of his property be put to some particular use, his Will is not in order.
2708. In case of Wasiyat Tamlikiyah (Possessory Will), acceptance of Moosi lah (to whom the property will belong) is necessary. So, if a person makes a Will that something from his property will belong to someone, that thing will become his property only when he will accept the Will. It is not necessary that the acceptance takes place after the death of the testator, in fact the acceptance took place during the lifetime of the testator, it is sufficient. However, he will not become the owner of the property as soon as he accepts the Will of the testator, instead he will become the owner after the death of the testator without a second acceptance. And if the acceptance takes place after the death of the testator, the person will immediately become the owner of the property.
2709. When a person sees signs of approaching death in himself, he should immediately return the things held in trust by him to their owners. And if he is indebted to others, and the time for repayment of the debt has matured, he should repay the debt.
And if he himself cannot repay the debt, or the time for its repayment has not yet matured, he should make Will and should appoint a witness to the Will. However, if his debt is known (by his heirs), and he is certain that his heirs will repay the debt, it is not necessary to make a Will.
2710. If a person who sees signs of approaching death in himself, has a debt of Khums and Zakat, or Mazalim (wealth wrongly appropriated), he should immediately make the payment, and if he cannot make payment immediately, he should make a Will directing payment, if he owns some property, or if he knows someone will pay on his behalf. The same rule applies if he has obligatory Hajj on him.
2711. If a person who finds signs of approaching death in himself, has lapsed (Qadha) of some prayers and fasts due to him, he should direct in his Will that a person be hired and paid from his estate for the performance of Qadha prayers and fasts. In fact, even if he does not leave any estate, but feels it probable that someone would perform them without taking any fees, it is obligatory for him to make a Will in this behalf. And if his Qadha and fasts is obligatory on his eldest son according to the details mentioned in rule 1399, he should inform him, or he should make Will asking them to perform it for him.
2712. If a person who finds signs of impending death in himself has deposited some property with some other person, or has concealed it in some place of which his heirs are not aware, and if owing to the ignorance of the heirs their right is lost, he should inform them about it.
And it is not necessary for him to appoint a guardian, or an administrator for his minor children, however, if it is feared that their property may perish, or they themselves may be ruined without an administrator, in which case, he should appoint a trustworthy administrator for them.
2713. The executor (Wasi) should be Muslim, sane and trustworthy.
2714. If a person appoints more than one executors, allowing each of them to execute the Will independently, it will not be necessary that they should obtain permission from one another for the execution of the Will. And if he had not given any such permission - whether he had or had not said that they should execute the Will jointly, they should execute the Will in consultation with one another.
And if they are not prepared to execute the Will jointly, the Mujtahid can force them to do so, and if they do not obey his orders, then the Mujtahid can replace the executors.
2715. If a person retracts a directive in his Will, for example, if he first says that 1/3 of his property should be given to a person, and then says that it should not be given to him, the Will becomes void. And if he changes his Will, for example, if he appoints an administrator for his children, and then replaces him with another person, his first Will becomes void, and his second Will should be acted upon.
2716. If a person conducts himself in a manner which shows that he has drawn back from his Will, for example, if he sells a house which he had willed to give away to someone, or appoints someone as his agent to sell it, the Will becomes void.
2717. If a person makes a Will that a particular thing be given away to someone, and later changes it to say that half of the same thing should be given to another person, that thing should be divided into two parts, and one part should be given to each of them.
2718. If a person who is on his death – bed, bestows a part of his property as gift on a certain person, and makes a Will that after his death another quantity be given to yet another person, the property which he bestowed will be excluded from his estate, and the property regarding which he made a Will, if it does not exceed one – third of his estate, or it does exceed one – third of his estate but the heirs are prepared to approve the excess, then the will should be put in effect.
However, if the property regarding which he made a Will exceeds one – third of his estate, and the heirs are not prepared to approve the excess, in that case one – third should be spent according to the Will.
2719. If a person makes a Will that one – third of his property should not be sold and its income should be spent for some particular purpose, his instructions should be followed.
2720. If a person says during his terminal illness, that he owes certain amount to someone, and if he is suspected of having said that to harm his heirs, the amount specified by him should be given out of one – third of his property; and if he is not suspected of any such motive, his admission will be valid, and the payment should be made out of his estate.
2721. When a person makes a Will that something be given to another person, it is necessary that that beneficiary should exist; thus, if he makes a Will that something be given to a child who may possibly be born of a particular woman, such Will is void. However, if he makes a Will that something to be given to a child who is in the womb of his mother, even if the sign of life has not yet appeared, the Will is in order. So, if the child is born alive, it is necessary that the thing should be given to the child as mentioned in the Will, but if the child is not born alive, the Will is void, and whatever he willed for that person should be divided by the heirs among themselves.
2722. If a person comes to know that someone has appointed him his executor, and he informs the testator that he is not prepared to perform the duties of an executor, it is not necessary for him to act as an executor after the death of the testator.
But, if he does not come to know of his appointment before the death of the testator, or comes to know about it, but fails inform the testator that he is not prepared to act as an executor, as per obligatory precaution, he should execute the Will if the execution of the Will does not involve any hardship to him.
Also, if the executor comes to know of his appointment at a time when due to serious illness, the testator cannot appoint any other executor, he should, as per obligatory precaution, accept the appointment.
2723. If the testator dies and the executor does not know whether the deceased specifically meant him to execute the Will, and there is no witness and context to understand the intention of the deceased, in such case, executor can appoint another person to execute the Will. However, if the executor knows that the intention of the
deceased was that the executor should execute the Will himself, he cannot appoint another person on his behalf.
2724. If a person appoints two persons as joint executors, and if one of them dies, or becomes insane, or an apostate, the Mujtahid will appoint another person in his place. And if both of them die, or become insane or apostates, if it is not known that deceased wanted two people to execute his will, the Mujtahid will appoint one person in their place. If it is known that the deceased specifically wanted two persons to execute his Will, the Mujtahid will appoint two persons in their place.
2725. If an executor alone cannot perform all the tasks laid down in the Will of the deceased, then the Mujtahid will appoint someone to assist him in his duties.
2726. If a quantity from the property of a dead person is lost or damaged while in the custody of the executor, and if he has not been negligent in looking after it, or has not gone beyond moderation, he will not be responsible.
And if he has been negligent in looking after it, or has gone beyond moderation, for example, if the dead person had asked in his Will to give a certain quantity to the poor of a particular town, and he took it to some other town, and in the process it has perished, he will be responsible for it. In fact, if it is not perished or damaged in the way, but has given to poor people of a town, who were not mentioned in the Will by the deceased, he will be responsible for it.
2727. If a person appoints someone as his executor, and says that after that executor’s death, another person should be the executor in his place, the second executor should perform the tasks laid down in the Will of the deceased, after the death of the first executor.
2728. If obligatory Hajj remained unperformed by the dead person, or debts and dues like Khums, Zakat and Mazalim (wealth wrongly appropriated) which were obligatory to pay, were not paid, they should be paid from the estate of the deceased, even though he may not have directed in his Will for them.
2729. If the estate of the deceased exceeds his debt and expenses for obligatory Hajj, and obligatory religious dues like Khums, Zakat and Mazalim, and if he has also made a Will that 1/3 or a part thereof of his property be put to a particular use, his Will should be followed, and if he has not made a Will, then what remains is the property of the heirs.
2730. If the disposal specified by the deceased exceeds 1/3 of his property, his Will in respect of what exceeds the 1/3 of his property will be valid only if the heirs show
their agreement, by words or by conduct.
Their tacit approval will not suffice. And even if they give their consent after some time, it is in order.
2731. If the dispensation specified by the deceased exceeds 1/3 of his property, and his heirs give consent to that dispensation before his death, they cannot withdraw their permission after his death.
2732. If a person makes a Will that Khums and Zakat and other debts due to him should be paid out of 1/3 of his property, and also someone be hired for performing his Qadha prayers and fasts, and also perform Mustahab acts like feeding the poor, in this case, his debt should be paid first out of the 1/3 of his property, and if there is a balance, a person should be hired to perform his Qadha prayers and fasts, and if there is still a residue, it should be spent on the Mustahab acts specified by him. If, however, 1/3 of his property is sufficient only for the payment of his debts, and his heirs, too, do not permit that anything more than the 1/3 of his property should be spent, his Will in respect of prayers, fasts, and Mustahab acts is void.
2733. If a testator wills that his debt should be paid, and also someone should be hired for the performance of his Qadha prayers and fasts, and also Mustahab acts should be performed, but does not direct that the expenses for those acts should be paid from 1/3 of his estate, then his debt should be paid from his estate, and if anything remains, 1/3 of it should be spent on prayers and fasts and Mustahab acts specified by him.
And if that 1/3 is not sufficient, and if his heirs permit, his Will should be implemented (by paying from their share), and if they do not permit, the expenses of prayers and fasts should be paid from the 1/3 of his estate, and if anything remains it should be spent on the Mustahab acts specified by him.
2734. If a person claims that the deceased had Willed that a certain amount should be given to him, and two Adil men confirm his statement, or if he takes an oath, and one Adil man also confirms his statement, or if one Adil man and two Adil women, or four Adil women bear witness to what he says, the amount claimed by him should be given to him.
And if only one Adil woman bear witness, 1/4 of the amount claimed by him should be given to him, and if two Adil women bear witness, 1/2 of that amount, and if three Adil women bear witness, 3/4 of it should be given to him.
Also, if two non - Muslim males from amongst the people of the Book and are residing under the protection of Muslim govt. (Kafir Dhimmi), who are esteemed as Adil in their own religion, confirm his statement, and if the dead person was obliged
to make a Will while no Adil man and woman was present at that time, the amount claimed by that person should be given to him.
2735. If a person claims that he is the executor of the deceased, and can act according to the Will and put it into effect, or that the deceased had appointed him an administrator of his children, his statement should be accepted only if two Adil men confirm it.
2736. If a person makes a Will that something from his estate is for a particular person, and that beneficiary dies before accepting or rejecting it, his (beneficiaries) heirs can accept it as long as they (beneficiary’s heirs) do not reject the Will. However, this order applies when the testator does not retract his Will, otherwise the beneficiary have no right to lay claim to that thing.