Al-Wasiyyah (The Will)

Shar’ee Definition: A person’s (i.e. the testator) gift – be it a physical item, loan, or benefit to be given out after his death – is provided to the one for whom the will is made, who now owns the gift. It can even be broader than this. It can be instructions that are to be carried out after his death as is defined by some scholars, or it might include instructions with regards to his washing by a specific person, or who should lead the funeral Salaat for him as Imam, or instructions about disposal of his wealth.

Proofs for its Prescription

The legislation of the Wasiyyah is known from the Qur’an, the Sunnah and by the Ijmaa’ (consensus).

Allaah (Ta’ala) says in Surat Al-Baqarah (2:180):

كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ إِنْ تَرَكَ خَيْرًا الْوَصِيَّةُ لِلْوَالِدَيْنِ وَالْأَقْرَبِينَ بِالْمَعْرُوفِ ۖ حَقًّا عَلَى الْمُتَّقِينَ

“It is prescribed for you, when death approaches any of you, if they leave something of value, that he makes a bequest to parents and next of kin, according to reasonable manners.” (This is) a duty upon Al-Muttaqun (the pious). ¹Translator’s Note: Imam Ibn Katheer (Rahimahullaah) writes in the Tafseer of this verse, “This verse contains the command to include parents and relatives in the will, which was obligatory, according to the most correct view before the verse about inheritance was revealed. When the Ayah of inheritance was revealed, this Ayah was abrogated, so fixed shares of the inheritance for deserving recipients were legislated by Allaah. Therefore, deserving inheritors take their fixed inheritance without the need to be included in the Will or to be reminded of the favor of the inherited person. For this reason we see the Hadeeth narrated in the Sunan and other books that Amr bin Kharijah said, “I heard Allaah’s Messenger saying in a speech, “Allah has given each heir his fixed share. So there is no will for a deserving heir.” [Tafseer Ibn Katheer]

Ibn ‘Umar (Radia-Allaahu ‘anhuma) reported that Allaah’s Messenger (Salla-Allaahu ‘alayhi wa sallam) said: “It is the duty of a Muslim who has something to be given as a bequest (i.e., to give or leave behind after death), not to have it for two nights without having his will written down regarding it.” [Agreed upon. Reported by Al-Bukhaari (2738) and Muslim (1627)]

And the scholars have agreed upon (Ijmaa’) concerning its permissibility.

Rulings pertaining to Al-Wasiyyah

1. It is obligatory upon a Muslim to write in his Wasiyyah about the rights that are for him and those rights due upon him (like debts, etc.) towards others, based on the previous Hadeeth of Ibn ‘Umar (Radia-Allaahu ‘anhuma).

2. It is Mustahab (recommended) to make a Wasiyyah (bequest) with regards to some part of his wealth to be spent for good causes and to benefit others so that he receives the reward of it after his death. Abu Ad-Dardaa’ (Radia-Allaahu ‘anhu) narrated that the Messenger of Allaah (Salla-Allaahu ‘alayhi wa sallam) said: “Allaah has been charitable with you over the disposal of one-third of your wealth at the time of your death, so that you may be able to add to the record of your good deeds and gain an increase in your actions.” [Ibn Maajah no. 2709 and authenticated by Al-Albaani in Irwaa’ Al-Ghaleel no. 1641 and graded Hasan]

3. The permission for bequeathing one-third or less.

As for the permissibility of one-third, due to the narration of Sa’d ibn Abi Waqqas (Radia-Allaahu ‘anhu) who asked the Messenger of Allaah (Salla-Allaahu ‘alayhi wa sallam) during his own illness, “Shall I give two-thirds of my property as charity?” He (Salla-Allaahu ‘alayhi wa sallam) replied, “No.” I further inquired, “Shall I give half of it as charity?” He replied, “No.” I said, “Shall I give a third of it as charity?” He replied, “You may give one-third as charity, which is still a lot.” [Agreed upon. Reported by Al-Bukhaari (1295) and Muslim (1628)]

As for the recommendation of less than one-third, Ibn ‘Abbaas (Radia-Allaahu  ‘anhu) said: “(It would be better) if the people were to reduce the will to one-fourth because the Messenger of Allaah (Salla-Allaahu ‘alayhi wa sallam) said: ‘One-third, and one-third is too much.’“

4. Wasiyyah for more than one-third by the one who has inheritors is not correct because of the previously mentioned Hadeeth of Sa’d ibn Abi Waqqas (Radia-Allaahu ‘anhu) unless the inheritors permit it. However, if he does not have any inheritor, then it is correct to bequeath all his wealth.

5. It is not correct to make the Wasiyyah to an heir (i.e., to bequeath or assign wealth to an inheritor) because of what is reported by Abu Umamah (Radia-Allaahu ‘anhu) that the Prophet (Salla-Allaahu ‘alayhi wa sallam) said: “Allaah has appointed for everyone who has a right what is due to him, and no Wasiyyah (will) should be made to an heir.” [Reported by Abu Dawoud (2870), At-Tirmidhi (2120), Ibn Maajah (2713). Authenticated by Al-Albaani in Saheeh Ibn Maajah (2193)]

6. It is prohibited to make a Wasiyyah for a sinful act because the purpose of a Wasiyyah is to increase in good deeds for the one making the Wasiyyah as was mentioned in the Hadeeth of Abu Ad-Dardaa’ (Radia-Allaahu ‘anhu) in no. 2 above.

7. Debt and legal obligations (of the Religion) like Zakaat, Hajj and Kaffarah (atonements) take precedence over the Wasiyyah because of Allaah’s saying in Surat An-Nisaa’ (4:11):

مِنْ بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ

(The distribution in all cases is) “After the payment of legacies he may have bequeathed, or debts.”

‘Ali (Radia-Allaahu ‘anhu) narrated: “The Prophet (Salla-Allaahu ‘alayhi wa sallam) settled (paid off) debt before (executing) the Wasiyyah.”

8. It is a condition that the testator (the one making the Wasiyyah regarding his wealth) be of sound mind, an adult, having free will and a choice.

9. It is prohibited to make a Wasiyyah for a sinful place, such as places for the disbelievers to worship or for the purchase of musical instruments, etc. This would be a null and void Wasiyyah.

10. The Wasiyyah is Mustahab (recommended) for the one who has a huge inheritance and whose inheritor is in no need because Allaah (Ta’ala) says in Surat Al-Baqarah (2:180):

كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ إِنْ تَرَكَ خَيْرًا الْوَصِيَّةُ

“It is prescribed for you, when death approaches any of you, if they leave something of value (Khairan), that he makes a bequest.”

Al-Khair means “huge wealth” – whereas the Wasiyyah is disliked for the one who has little wealth and his heirs are in need because of the saying of Allaah’s Messenger (Salla-Allaahu ‘alayhi wa sallam): “It is better to leave your heirs rich than to leave them poor and begging from people.” [Reported by Al-Bukhaari no. 4409] Many of the Sahabah passed away but they did not make a Wasiyyah!

11. It is prohibited to make a Wasiyyah if the intent of the one making the Wasiyyah is to harm the heirs because of the saying of Allaah (Ta’ala) in Surat An-Nisaa’ (4:12):

غَيْرَ مُضَارٍّ

“so that no loss (or harm) is caused (to anyone).“

12. It is not correct to accept the Wasiyyah nor possess it except after the death of the owner (the testator) because that is the time when the heir has the right to it – this is in case the Wasiyyah was for a specific individual.

In the case of the general Wasiyyah, such as to bequeath the poor and needy, students of knowledge or the Masaajid and orphanages, acceptance (agreement or approval) is not a condition; it is required to distribute it once the testator dies.

13. It is permissible for the testator (the one making the Wasiyyah) to change his mind regarding the Wasiyyah; whether a part of it or the complete will. He may also annul it (i.e., make a new Wasiyyah). ‘Umar (Radia-Allaahu ‘anhu) said: “One can change whatever he likes from his Wasiyyah.” [Sunan Al-Bayhaqi (6/281). Reported by ‘Abdur-Razzaq in his Musannaf (9/71) on the authority of Ataa’ and Ta’oos and Abu Ash-Sha’thaa’]

14. The Wasiyyah is correct for every person who is an owner regardless of him being a Muslim or a disbeliever. Allaah (Ta’ala) says in Surat Al-Ahzaab (33:6):

إِلَّا أَنْ تَفْعَلُوا إِلَىٰ أَوْلِيَائِكُمْ مَعْرُوفًا

“except that you may show kindness (by making bequests) to close friends or allies.“

Source:

Al-Fiqh Al-Muyassar fee Daw’ Al-Kitaab was-Sunnah, by a group of Ulamaa