Will And Testament

ISLAMIC WILL AND TESTAMENT

Al-Haramain Islamic Foundation

All praises are due to Allah in whom we believe and from whom we ask forgiveness and help. We seek refuge in Allah from our evil doings and our bad deeds. Whoever Allah guides, no one can lead astray; and whoever Allah leaves astray, no one can guide.

Abdallah bin Umar narrated that the Messenger of Allah (saws) said: “It is not permissible for any Muslim who has something to will to stay for two nights without having his will and testament written and kept ready with him.” (Sahi Al-Bukhari).

Pursuant to the Prophet’s (saws) order for Muslims to have their wills written, I hereby request and certify the following while being in full mental and good health.

My bequest is as follows:

I, ____________________________________ bear witness that there is no deity except Allah, that he is devoid of partner, and that Muhammad is His slave and Messenger; and that the Hour for certain will come, and that Allah will resurrect all those who are in the graves.

I ask those who survive me from among my relatives and immediate family members to fear Allah (saws) and settle as well as correct the relationships among themselves and to obey Allah and His Messenger (saws) as Allah orders in the Qurâan: “So fear Allah and keep straight the relations between yourselves and obey Allah and His Messenger if you are indeed believers.” (Surah al-Anfal: 1).

I also enjoin upon those of my family who survive me what Prophets Ibraheem and Yaâcob (peace be upon them) directed their sons: “O my sons, Allah has chosen for you the religion [of Islam], so do not die except as Muslims [in a state of submission to Allah].” (Surah al-Baqarah, 2:132)

I request that when I am in the brink of death, the best of people with the utmost faith and the Muslim scholars be called to cajole and encourage me to say the words of the Shahadah: La ilaha ill-Allah, Muhammadun Rasulullah.

This is in observance with the prophet’s saying which goes: “Anyone whose last words were ˜La ilaha ill-Allah will enter Paradise. [Ahmad, Abu Dawud and al-Hakim – Saheeh.]

There is no deity except Allah. Indeed, to Allah we belong and indeed to Him we return. O Allah, reward me in this affliction and replace it with something better for me. I warn you against wailing, beating your cheeks or tearing your clothes, as the Prophet (saws) has prohibited these acts. After you have buried me, the first thing you must do is to clear me of my debts (if there are any), as the believer’s soul is held back by his liabilities. Do not practice innovations regarding the three-day condolence period, such as bringing in someone to recite excerpts from the Qurâan or to prepare food for guests. And if you do any such innovations, I am free from that guilt and deviation, having therefore discharged my moral responsibility by informing you.

My Financial Will

A. My debts are:

1._________________________________________________________________________

2._________________________________________________________________________

3._________________________________________________________________________

4._________________________________________________________________________

5._________________________________________________________________________

6._________________________________________________________________________

7._________________________________________________________________________

8._________________________________________________________________________

9._________________________________________________________________________

10.________________________________________________________________________

B. What is due to me may be collected from:

1._________________________________________________________________________

2._________________________________________________________________________

3._________________________________________________________________________

4._________________________________________________________________________

5._________________________________________________________________________

6._________________________________________________________________________

7._________________________________________________________________________

8._________________________________________________________________________

9._________________________________________________________________________

10.________________________________________________________________________

C. Of the trust kept in my custody, please return the following to:

1._________________________________________________________________________

2._________________________________________________________________________

3._________________________________________________________________________

4._________________________________________________________________________

5._________________________________________________________________________

6._________________________________________________________________________

7._________________________________________________________________________

8._________________________________________________________________________

9.______________________________________________________________________ ___

10.________________________________________________________________________

D. I bequeath in Sadaqah (not exceeding one third of my estate) the following:

1._________________________________________________________________________

2._________________________________________________________________________

3._________________________________________________________________________

4._________________________________________________________________________

5._________________________________________________________________________

6._________________________________________________________________________

7._________________________________________________________________________

8._________________________________________________________________________

9._________________________________________________________________________

10.________________________________________________________________________

I declare that I have forgiven everyone who has backbitten me and request all those who knew me to do the same for whatever I may have erroneously taken from them or said against them. I also appeal that if you differ in anything among yourselves you refer the decision to Allah and His Messenger (saws), for Allah (swt) said: “And no, by your Lord, they will not believe until they make you, [O Muhammad], judge in what they dispute among themselves and then find no discomfort from what you have judged and submit in full, [willing] submission.” (Surah an-Nisa 4: 65)

My final bequest for my family and children is the same one that the Messenger of Allah (saws) enjoined upon his followers: “The prayer, the prayer, and I advise my family to have patience and accept Allahâ’s will.” (Surah al-Baqarah:156)

This is my last will and testament, and so I am now free before Allah (saws) from any words or deeds that distort and contradict the guidance of Allahâ’s Messenger (saws), as is forewarned by the following Quranic verses: “Then whoever alters it [i.e. the bequest] after he has heard it – the sin is only upon those who alter it.” (Surah al-Baqarah 2:181).

Glory be to your Lord, the Lord of Honor and Might, [who is free] from what they ascribe to Him. And peace be upon the Messengers. And praise be to Allah, Lord of the worlds. (Surah as-Saffat:180-182)

Written on: (day)_________ (month)___________________ (year)________

Bequeather: _________________________________

Signature: __________________________________

Witness: (1) _________________________ (signature) _________________

Witness: (2) __________________________ (signature) _________________

Amendment no. 1

Written on: (day)_________ (month)___________________ (year)________

Bequeather: _________________________________

Signature: __________________________________

Witness: (1) _________________________ (signature) __________________

Witness: (2) __________________________ (signature) _________________

Amendment no. 2

Written on: (day)_________ (month)___________________ (year)________

Bequeather: _________________________________

Signature: __________________________________

Witness: (1) _________________________ (signature) _________________

Witness: (2) __________________________ (signature) _________________

Amendment no. 3

Written on: (day)_________ (month)___________________ (year)________

Bequeather: _________________________________

Signature: __________________________________

Witness: (1) _________________________ (signature) _________________

Witness: (2) __________________________ (signature) _________________

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THE ISLAMIC LAW OF WILLS

Dr. Abid Hussain

This article is a very brief overview of the traditional Sunni Islamic law pertaining to the Islamic will. The aim of this article is to arouse awareness amongst Muslims particularly those living in the West regarding this important aspect of Islamic law. It should be stressed that when writing a will one should consult an Islamic scholar/legal expert to ensure that the will complies with Islamic law as well as the law of the country of residence.

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 Sharia

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 one who makes a will (wasiyya) is called a testator (al-musi). The one on whose behalf a will is made is generally referred to as a legatee (al-musa lahu). Technically speaking the term “testatee” is perhaps a more accurate translation of al-musa lahu.

The importance of the Islamic will

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)

The will gives the testator an opportunity to help someone (e.g. a relative need such as an orphaned grandchild or a Christian widow) who is not entitled to inherit from him. The will can be used to clarify the nature of joint accounts, those living in commensality, appointment of guardian for one’s children and so on. In countries where the intestate succession law is different from Islamic law it becomes absolutely necessary to write a will.

The Will (Al-wasiyya)

The Islamic will includes both bequests and legacies, instructions and admonishments, and assignments of rights.

No specific wording is necessary for making a will. In Islamic law the will (wasiyya) can be oral or written, and the intention of the testator must be clear that the wasiyya is to be executed after his death. Any statement which signifies the intention of the testator is sufficient for the purpose of constituting a bequest.

There should be two witnesses to the declaration of the wasiyya. A written wasiyya where there are no witnesses to an oral declaration is valid if it written in the known handwriting/signature of the testator according to Maliki and Hanbali fiqh.

The wasiyya is executed after payment of debts and funeral expenses. The majority view is that debts to Allah (SWT) such as zakah, obligatory expiation etc. should be paid whether mentioned in the will or not. However, there is difference of opinion on this matter amongst the Muslim jurists.

The Testator (Al-musi)

Every adult Muslim with reasoning ability has the legal capacity to make a will. An adult for this purpose is someone who has reached puberty. Evidence of puberty is menstruation in girls and night pollution (wet dreams) in boys. In the absence of evidence, puberty is presumed at the completion of the age of fifteen years. The Maliki and Hanbali fiqh also consider the will of a discerning (tamyiz) child as valid.

Under English Law you must be at least 18 years of age to make a valid will (similarly in most of the United States of America) unless you are a military personnel in which case you may make a valid will at the age of 17.

The testator must have the legal capacity to dispose of whatever he bequests in his will. When making a will the testator must be of sane mind, he must not be under any compulsion and he must understand the nature and effect of his testamentary act. The testator must of course own whatever he bequests.

The testator has the right to revoke his will by a subsequent will, actually or by implication.

In traditional Sunni Islamic law the power of the testator is limited in two ways:

1. Firstly, he cannot bequest more than 1/3 of his net estate unless the other heirs consent to the bequest or there are no legal heirs at all or the only legal heir is the spouse who gets his/her legal share and the residue can be bequeathed.

Narrated Sa’d ibn Abi Waqqas (RA): “I was stricken by an ailment that led me to the verge of death. The Prophet came to pay me a visit. I said, “O Allah’s Apostle! I have much property and no heir except my single daughter. Shall I give two-thirds of my property in charity?” He said, “No.” I said, “Half of it?” He said, “No.” I said, “One-third of it?” He said, “You may do so, though one-third is also too much, for it is better for you to leave your offspring wealthy than to leave them poor, asking others for help…” (Sahih al-Bukhari, Sahah Muslim, Muwatta, Tirmidhi, Abu Dawud and Ibn Majah.)

2. Secondly, the testator cannot make a bequest in favour of a legal heir under traditional Sunni Muslim law. However, some Islamic countries do allow a bequest in favour of a legal heir providing the bequest does not exceed the bequeathable one-third.

Legal heir in this context is one who is a legal heir at the time of death of the testator.

Narrated Abu Hurayrah (RA): Allah’s Prophet (SAWS) said, “Allah has appointed for everyone who has a right what is due to him, and no bequest must be made to an heir. (Abu Dawud). Similar hadith narrated by Abu Umamah (RA) and reported by Ibn Majah, Ahmad and others.

The Legatee (Al-musa lahu)

Generally speaking, for a bequest to be valid, a legatee must be in existence at the time of death of the testator except in the case of a general and continuing legatee such as the poor, orphans etc.

The legatee must be capable of owning the bequest. Any bequest made in favour of any legal heir already entitled to a share is invalid under traditional Sunni Muslim law unless consented to by other legal heirs. An acknowledgement of debt in favour of a legal heir is valid.

Acceptance or rejection of a bequest by the legatee is only relevant after the death of the testator and not before. Generally speaking once a legatee has accepted or rejected a bequest he cannot change his mind subsequently.

If the legatee dies without accepting or rejecting the bequest, the bequest becomes part of the legatee’s estate according to the Hanafi fiqh because non-rejection is regarded as acceptance. According to the other three main Sunni madhahib, the right to accept or reject the bequest passes onto the heirs of the legatee.

There is difference of opinion as to the time at which ownership of a bequest is transferred from the testator (or his heirs) to the legatee. According to the Hanafi and Shafii fiqh the transfer of ownership is at the time of death of the testator, according to the Maliki and Hanbali fiqh the transfer of ownership is at the time of accepting the bequest.

All the Sunni madhahib agree that if the legatee dies before the testator, the bequest is invalid since a bequest can only be accepted after the death of the testator.

If there is uncertainty as to whether or not the legatee survived the testator, such as a missing legatee, the bequest is invalid because the legatee must be alive at the time of death of the testator for the will to be valid.

If the testator and legatee die together, such as in an air crash, and it is not certain who died first, the bequest is invalid according to the Hanafi, Maliki and Shafii fiqh. But according to the Hanbali fiqh, the bequest devolves upon the legatee’s heirs who may accept or reject it.

Executor of the will (Al-wasi Al-mukhtar)

The executor (al-wasi) of the will is the manager of the estate appointed by the testator. The executor has to carry out the wishes of the testator according to Islamic law, to watch the interests of the children and of the estate. The authority of the executor should be specified. Hanafi and Maliki fiqh state that the executor should be trustworthy and truthful; the Shafii fiqh state that the executor must be just. The Hanafi fiqh considers the appointment of a non-Muslim executor to be valid. The testator may appoint more than one executor, male or female. The testator should state if each executor can act independently of the other executor(s).

If one starts acting as an executor, one will be regarded as having accepted the appointment, both in Islamic and in English law.

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THE WASEEYAH OF SHAYKH MUQBIL (RAHIMAHULLAH)

Source: Salafipublications

In the name of Allaah the Most Kind and the Most Merciful

All praise be to Allaah, the Lord of the worlds and may Allaah send His prayers upon our Prophet Muhammad and upon his family and his companions, and I testify that there is none worthy of worship except Allaah Alone who has no partner, and I testify that Muhammad is His slave & Messenger.

To Proceed:

Allaah (subhaanahu wa t’aalaa) says: “Every soul will taste death, and you will only be given your (full) compensation on the Day of Resurrection. So he who is drawn away from the fire and admitted to Paradise has attained (his desire). And what is the life of this world except the enjoyment of delusion.”

And He (subhaanahu wa t’aalaa) says: “Where ever you may be, death will over take you, even if you should be within towers of lofty construction.”

And He (subhaanahu wa t’aalaa) says: “Say even if you had remained in your homes, those for whom death was decreed would certainly have gone forth to the place of your death.”

And He (subhaanahu wa t’aalaa) says: “And every nation has a specified time. So when their time has come, they will not remain behind an hour, nor will they precede it.”

And at-Tirmidhee narrates in his Jaama’ with an authentic sanaad on the authority of Aboo ‘Azzah Yassaar, on the Prophet (sall-Allaahu ‘alayhi wa sallam): “If Allaah intends that His slave dies in another land, then He makes it so that he has a need to go there.”

I used to read this hadeeth a lot to our brothers whilst on our travels, and indeed we are not surprised by the treachery of the enemies, because indeed the da’wah faced an inevitable falsehood, where by the companions of falsehood caused treachery, and perhaps that Allaah has destined for me to die on a bed, and I used to wish that Allaah takes me, as a martyr whilst giving da’wah, & praise be to Allaah for what ever Allaah has destined, since more than one of the ‘Ulemah have said that refuting the people of Bid’ah is at the status of Jihaad in the path of Allaah, rather it is better than Jihaad in the path of Allaah, but I ask of Allaah to provide me with ikhlaas (sincerity) in what is left of my life.

And After this I advise all my close relatives with patience and to credit with reward, and that they should know that Allaah will not cause them to be lost and upon them is what the Prophet (sall-Allaahu ‘alayhi wa sallam) taught Umm Salma to say: “O Allaah replace for me a husband better than Abu Salma…” to the end of the hadeeth.

Also, I advise the relatives – may Allaah preserve them and grant them the capability for all good – with our brother the Shaykh Ahmed al-Wasabee goodness and not to believe what is said about him, and I advise them to take from the noble Shaykh Yahya bin ‘Alee al-Hajooree from his goodness and not to agree in allowing him to leave the chair of teaching, because he is a truthful advisor, and also the rest of the noble students and guards and also the rest of the students al-Guhrabaa; for they are patient with the harsh situations which Allaah knows, for the sake of Taalib-ul-‘Ilm, so be good to them, because indeed Allaah (subhaanahu wa t’aalaa) says: “And had you been severe and harsh hearted, they would have broken away from you.”

The foreign students will feel pain from a harsh word which is said to him especially since some of them come from countries surrounded by luxuries, so be gentle with them, may Allaah preserve you.

And beware and do not differ, and leave the matter of expelling anybody to Ahmed al-Wasabee, and Shaykh Yahya, and the guards. And I advise my tribe Wadi’aah – May Allaah honour them with His obedience – that they protect Dar al-Hadeeth, since it is regarded as honour for them, and indeed they helped to make the da’wah victorious from its beginning, so may Allaah reward them with goodness.

And I advise my brothers from Ahlus-Sunnah to concern themselves with beneficial knowledge, and truthfulness with Allaah and sincerity, and if there befalls them a situation, then those who are the people of hal wa Aqad (solutions and agreements) should gather and deal with it: like Shaykh Muhammad bin ‘Abdul-Wahhaab, Shaykh Abul-Hasan al-Ma’rabee, Shaykh Muhammad al-Imaam, Shaykh ‘Abdul-Azeez al-Bura’ee, Shaykh ‘Abdullaah bin ‘Uthmaan, Shaykh Yahya al-Hajooree, Shaykh ‘Abdur-Rahmaan al-‘Adaanee, and I advise them to consult the noble Shaykh, the admoniter, wise Shaykh Muhammad as-Somalee, in their affairs, because I used to consult him and he used to advise me with righteousness.

And I request from all those fore-mentioned and from the rest of Ahlus-Sunnah to have forgiveness especially for the students of knowledge in Damaj, because I may have caused grief to some of the Mujtahideen but that was not done due to desire.

And know – may Allaah preserve you – that I came to Yemen not possessing any thing, so therefore the cars and the water pump machines are to be for the benefit of the students of knowledge, under the supervision of Shaykh Ahmed al-Wasabee and Shaykh Yahya al-Hajooree, and the guards should fulfil their order as long as they do not differ.

And with this, I ask Allaah to make us and your selves firm with a firm statement in this life and the hereafter, and to protect us and your selves from the fitnah of life and the death, indeed He is Capable of all things.

Muqbil bin Haadee al-Wada’ee

Witnesses: ‘Abdullaah bin Saalih bin Ahmad al-Wad’aee, Saalih bin Faeed al-Wad’aee, Abu Hatim Abdullaah bin ‘Aee al-Faydalee.

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THE WASIYYAH (WILL) OF IMAM AL_ALBANEE

By Imaam Muhammad Naasirud-Deen Al-Albaanee

Taken from Ma’a Shaykhinaa Naasiris-Sunnah wad-Deen (p.27-31)

Source http://www.bakkah.net/articles/wasiyyah.htm

In the Name of Allaah, the All-Merciful, the Most Merciful…

Firstly, I advise my wife, children, friends, and all of my beloved ones, when the news of my death reaches them, to supplicate to Allaah, asking His Forgiveness and Mercy for me. I ask that they do not wail over me nor cry with a raised voice.

Secondly, I ask that they hurry my burial. I ask them also not to inform any of my close relatives or brothers (at the exclusion of others), except that which is necessary to prepare me for burial. Also I ask that they allow my body to be washed by my neighbor and sincere friend, ‘Izzat Khidr Aboo ‘Abdir-Rahmaan, and whoever he asks to help him with it.

Thirdly, I choose to be buried in the closest place available, so those who carry me will not place me in a car, nor will the followers of the janaazah (funeral) ride in their cars. I also ask that the graveyard be an old one, to ensure that its graves will not be exhumed…

…And for those living in the land that I die in, I ask that you do not make it a priority to inform my children from other lands until after I am buried. This is to prevent the emotions from overwhelming you, and as a result my janaazah becomes delayed.

I ask Al-Mawlaa (Allaah) that I meet him and that he has forgiven my past sins, and those I have yet to commit (at the time of writing this)…

…I bequeath my entire library, every printed book, copy, and manuscript (by my handwriting or someone else’s) to the library of the Islaamic University of Al-Madeenah. That is because of my many fond memories of that place, the da’wah to the Book and the Sunnah upon the way of the righteous Salaf that I remember from the years I used to teach there.

I hope that Allaah will cause it to benefit the leaders of the da’wah there, as its owner used to benefit the students there in days gone by. And I ask that Allaah benefits me by them, from their sincerity and their work in the da’wah.

(O my Lord! Make me thankful for Your Favor that You bestowed upon me, and upon both my parents, and make me one that does righteous deeds that you love. And correct my offspring for me. Surely I repent to You, and surely I am from amongst the Muslims. ) [1]

Muhammad Naasirud-Deen Al-Albaanee

The 27th of Jumaadaa Al-‘Oolaa, 1410

Comments on the Wasiyyah by ‘Alee Al-Halabee

These are the most important excerpts from his wasiyyah, may Allaah sanctify his soul, from what is beneficial for the masses of the people. Some things specific to his situation, may Allaah have Mercy on him, were excluded.

And we took care of his request as he asked; as his death was before sunset and the prayer on him was performed after ‘Eshaa’. And the time between his death and burial was less than three hours. And in the hour of his burial, those present from his brothers, children, students, loved ones, friends, and relatives gathered, their number being close to 5000, or perhaps more. And the prayer was performed outdoors in an open area, according to the Sunnah. He was carried upon the shoulders of the people to the closest graveyard to his house, a privately-owned graveyard not open to the public. Allaah Alone granted us ease in getting him buried there, in a lahd [2], precisely according to the Sunnah once again.

Our teacher, the Shaykh, Muhammad bin Saalih Al-‘Uthaymeen, may Allaah preserve him [3], called the family of Shaykh Naasir on the night of his death to console them for their loss, saying, “His entire life was an exemplification of the Sunnah, his living as well as his dying.” May Allaah reward him. I can not find words to close with regarding our Shaykh, the great scholar, except that I say about him what Al-Imaam Al-Haakim said about his shaykh, Al-Haafith Abee ‘Alee An-Naysaabooree, may Allaah have Mercy on all of them: “I do not say this as a dedicated fanatic since he was my teacher, but I simply never saw anything comparable to him.” [4]

FOOTNOTES

[1] the meaning of Soorah Al-Ahqaaf (46):15

[2] an L-shaped grave

[3] may Allaah have Mercy on him

[4] Siyaru A’laam An-Nubalaa’ (16/54)

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