Wasîyyah or Bequests


Bahishti Zewar, Fiqh, Part 5-Principles of Business / Tuesday, November 23rd, 2010

1. A person’s saying that a certain amount of money or wealth will go to a certain person or for a certain cause after his death is known as wasîyyah. This is irrespective of whether he said this while he was enjoying good health or while he was ill, and irrespective of whether he passes away as a result of this sickness or he recovers from it. The rule with regard to the wealth which he gives with his own hands or forgives the debts that he is being owed is that if he gives this while he is enjoying good health or he recovers from the sickness in which he gave this, it is permissible for him to do this and this is valid. As for the sickness in which he passes away, this will be regarded as a wasîyyah – the rules regarding which will be mentioned later.

2. If a person has salâts to be fulfilled, fasts to be kept, zakâh to be paid, kaffârah to be paid for certain oaths, missed fasts, etc., and he also has sufficient wealth to fulfil all these, then at the time of death it is necessary and wâjib upon him to make a wasîyyah in this regard. Similarly, if a person has debts to be fulfilled or an amânah has been kept with him, it becomes wâjib upon him to make a wasîyyah in this regard. If he does not make a wasîyyah, he will be sinning.
If such a person has poor relatives who cannot inherit from his wealth according to the Sharî‘ah and this person has a lot of wealth and possessions, it is mustahab for him to make a wasîyyah in favour of these poor relatives. As for all other persons, he has the choice of either making a wasîyyah in their favour or not making.

3. When a person passes away, all the expenses for his ghusl, kafan, burial, etc. will be paid from his estate. Thereafter, all his debts will be paid. If the entire estate of the deceased is exhausted in paying off his debts, it is still necessary to pay off all the debts and the inheritors will not receive anything. Therefore, his wasîyyah of fulfilling his debts will have to be followed. Even if all his money is exhausted in fulfilling his wasîyyah of debts, it will have to be followed. In fact, even if he does not make any wasîyyah with regard to his debts, they will still have to be paid off first.

Apart from debts, the person can only make a wasîyyah for one third of his entire estate. In other words, if his wasîyyah can be fulfilled from one third of his entire estate, it will have to be fulfilled and it will not be wâjib on the inheritors to use more than one third in order to fulfil his wasîyyah. For example, after paying for his kafan, burial and debts, there remained R300 and R100 (which is one third of R300) was sufficient to fulfil all his wasîyyahs. In such a case, his wasîyyah will be fulfilled.

If the person’s wasîyyah is more than one third of his estate (in this case, more than R100), the inheritors will only have to fulfil the wasîyyahs until they pay off R100 and the balance of the wasîyyahs will not be paid. However, if all the inheritors happily agree to forgo their shares and rather have his wasîyyah fulfilled, then it will be permissible to use more than one third in order to fulfil his wasîyyah. It should be remembered that the permission of immature inheritors is not considered. Even if they agree, their share cannot be used to fulfil the wasiyyah.

4. It is not permissible to make wasîyyah in favour of the persons who are going to receive a share of the inheritance, e.g. one’s parents, husband, wife, son, etc. It is permissible to make wasîyyah in favour of those relatives who are not entitled to receive any inheritance and also those persons who are not relatives whatsoever. However, the person cannot make wasîyyah for more than one third of his estate.

If a person makes a wasîyyah in favour of one of his inheritors to the effect that a certain person will receive a certain item of mine after my death or a certain amount of money, such a person will have no right whatsoever to receive that item or money. However, if all the other inheritors happily agree to give him, it will be permissible for him to receive it.

If a person makes wasîyyah for more than one third, the same rule as above will apply. That is, if all the inheritors happily agree to give more than one third, it will be permissible for him to receive it. If not, he will only receive one third.

It should be remembered that under no circumstances can the permission of immature inheritors be taken into consideration. Remember this rule in all situations and circumstances.

5. Although a person is entitled to make a wasîyyah for one third of his estate, it is preferable not to make it for the full one third. Instead, it should be made for a lesser percentage. In fact, if a person is not very rich, it will be preferable for him not to make a wasîyyah at all. Instead, he should leave his wealth for his inheritors so that they may lead a life of comfort. This is because one is also rewarded for leaving his inheritors in a state where they can lead a life of comfort and ease. However, if it is a necessary wasîyyah, such as his missed salaats, fasts, fidyah, etc. then he will have to make a wasîyyah, if not, he will be sinning.

6. A person says: “After my death, give R100 in charity.” After paying for his burial arrangements and his debts, check how much wealth is left over. If there is R300 or more, R100 will have to be given in charity. If it is less than R300, it will only be wâjib to give one third of whatever money is left over. But if all the inheritors happily agree to give the full amount without anyone of them being coerced into agreeing, it will be permissible.

7. If a person has no inheritors, it is permissible for him to make wasîyyah for his entire estate. If he only has his wife as his inheritor, he can make a wasîyyah in her favour for three quarters of his estate. Similarly, if a woman only has her husband as her inheritor, she can make a wasîyyah in his favour for half her estate.

8. The wasîyyah of an immature child is not valid.

9. A person makes the following wasîyyah: “A certain person must perform my janâzah salât, I must be buried in a certain town, in a certain graveyard, next to a certain person, my kafan must be of a certain cloth, my grave must be constructed of bricks, a dome must be constructed over my grave, and a hâfiz must sit at my grave and continue reciting the Quran so that I may receive the rewards.” It is not necessary to fulfil such a wasîyyah. In fact, it is not permissible to fulfil the last three wasîyyahs. The person who fulfils them will be committing a sin.

10. If a person makes a wasîyyah and thereafter revokes it, i.e. he says that he does not wish it to be fulfilled anymore and that it should not be taken into consideration, then in such a case this wasîyyah will be invalid.

11. Just as it is not permissible to make a wasîyyah for more than one third of one’s estate, similarly, it is not permissible for one to spend more than one third of one’s wealth while one is in his maradul maut. However, he can spend his wealth for his basic necessities, his food and drink, medication, etc. If a person gives more than one third, it will not be permissible to do so without the permission of the inheritors. Whatever he gives beyond one third, the inheritors have the right to take it. As for immature inheritors, even if they grant permission, it is not considered. Inheritors do not have the right to give anything without the permission of all the other inheritors even if it is within the one third. This rule applies when the person gave it while he was alive and the person to whom it was given also took possession of it. If he gave it but the person did not take possession of it as yet, then once the person passes away, this giving of his will be absolutely invalid. The person will not receive anything and the inheritors will have a right in all the wealth. This rule also applies to spending in the path of Allah or in some noble cause while one is sick. In short, under no circumstance is it permissible to give more than one third.

12. When the person fell ill, a few people came to live with him with the intention of tending to him and seeing to his needs. They spent several days with him, living with him and partaking of his meals as well. If the sick person requires their services and therefore they stayed with him, there will be no harm in this. But if there is no need for them to be present, in such a case it will not be permissible for the sick person to spend more than one third in accommodating them.

If these persons who have come are his inheritors and there is no need for them to be present, it will not be permissible to spend even less than one third on them. That is, it is not permissible for them to eat from his wealth. However, if all the inheritors express their consent happily, it will be permissible.

13. When a person is in his maradul maut, he has no right to forgive anyone from paying their debts to him. If any inheritor was his debtor and he forgave him, it will not be considered to be forgiven. If all the inheritors give their consent to the waiving of an inheritor’s debts (provided all of them are mature), it will be considered to be waived. If a person waives the debts of an outsider, only an amount that is within one third will be waived and the balance will not be waived. It is a custom for the wife to forgive her husband from paying the mahr at the time of her death. This is not valid.

14. When a woman begins to experience labour pains and she gives something to anyone or forgives her mahr, then the rules that apply at the time of death will also apply here. That is, if, Allah forbid, she passes away during this labour, then whatever she gives will be regarded as a wasîyyah and therefore not permissible for an inheritor. If it is an outsider, she has no right to give or forgive more than one third. However, if she delivers the child and recovers completely, this giving and forgiving will be valid.

15. Once a person passes away, his burial arrangements will be paid for with his money. From the balance, his debts will first have to be paid off. This is irrespective of whether he made a wasîyyah in this regard or not – fulfilling of debts is always given precedence.

The mahr that is owed to one’s wife is also included in one’s debts. If the person has no debts or there is a remainder after fulfilling the debts, we will have to see whether he made any wasîyyah or not. If he made any wasîyyah, it will be paid from one third. If he did not make any wasîyyah or there is still a remainder, all the balance will be the right of the inheritors. One should enquire about the rightful inheritors (and their respective shares) from an ‘âlim and distribute the estate accordingly. The custom of anyone taking whatever he likes is a major sin. If a person does not pay in this world, he will have to pay in the hereafter – where the payment will be with one’s good deeds. Similarly, girls should also be given their share as the Sharî‘ah has given them a right as well.

16. It is not permissible to take the money of the deceased in order to pay for entertainment and accommodation of visitors, feeding them, or to give in charity, etc. Similarly, it is harâm to give any dry groceries, etc. (of the deceased) to poor persons from the time the person passes away until he is buried. In doing this, no reward whatsoever reaches the deceased. In fact, it is a major sin to regard this as an act of reward. This is because all this wealth now belongs to the inheritors, to deprive them of their right and give it to someone else is similar to stealing someone else’s money and giving it in charity. All the wealth should be distributed among the inheritors. Each one of them has the right to spend and give as he wishes provided it is spent in accordance with the Sharî‘ah. When intending to give in charity, one should not even ask the permission of the inheritors as in most cases, if they grant permission it will only be done superficially because they fear embarrassment. There is no consideration for such a permission.

17. Similarly, it is not permissible to give the deceased’s used clothes in charity without obtaining the consent of the inheritors. If there are any immature inheritors, it will not be permissible to give these clothes even if they grant permission. All these clothes should first be distributed among all the inheritors, thereafter, if the mature inheritors wish to give anything in charity, they may do so from that which they received. Without this distribution, these clothes should never be given in charity.

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