Despite it being highly recommended that Muslims fulfil their charitable obligations during their own lifetime, philanthropic donations are frequently left to heirs to discharge.

Islamic law specifies that the assets of the deceased should be used for the following:

1. For the execution of the will

2. For the discharge of outstanding debts

3. For heirs to receive the residue in accordance with the rules of inheritance.

In line with Islamic law, heirs automatically inherit prescribed shares of a deceased person's assets. Not withstanding this, everyone has the option to bequeath whatever property they wish to specific individuals or organizations.

This chapter examines the precedence that categories (1) and (2) have over category (3), differentiation between various types of last will and testament, prerequisites for a will to be valid, and the limitation for only a third of the assets being utilized for charitable purposes.

It Is Highly Recommended To Leave A Will

Many Muslims do not consider the importance of leaving clear instructions regarding the disposal of their assets. Thus, when they depart this life, their heirs are often confused as to what they might have wished.

The worst situations occur when one heir asserts, without the availability of clear supporting evidence that, certain property was promised to her/him. In such circumstances it is not uncommon for acute family divisions to result. To avoid dissension Allah has ordered:

"It is prescribed for you, when death approaches (any) one of you, and if he leaves behind wealth for parents and near relatives that he makes a bequest in a fair manner - (this is) a duty (incumbent) on the pious ones." (Surah Al-Baqarah, 2:180).

There are many ahadith from the Prophet (S) and error-free Imams (‘a) to support this injunction:

• Muhammad Ibn Muslim narrates that Imam al-Baqir (‘a) said, 'To leave a will is a duty. The Prophet (S) did so and it follows that it is incumbent upon all Muslims to do so too.'

• The Prophet (S) said, 'Whoever dies without leaving a will is to be regarded as being from a pre-Islamic community.'

• The Prophet said, 'No Muslim should retire at night without a will under their pillow.'1

Technical Terms

In the Arabic language the Islamic law term for 'last will and testament' is Wasiyyah. This is defined by jurists to be an endowment of property to be affected after death. In Arabic, the person whose will it is, the testator, is the musi. The one to whom something is left, the legatee, is the musa lahu, and the legacy itself is the musa bihi. The executor, or person whose duty it is to execute the will, is the wasiy.

Islamic law ascribes two aspects to a will:

1. Gifting - by which the beneficiary/legatee is bequeathed property - Wasiyyah tamlikiyah.

2. Administration - by which an executor is charged to handle the administration of the will without being a beneficiary - Wasiyyah ‘ahdiyah. This, of course, does not preclude payments being made for such services.

Wasiyyah Tamlikiyah

It is clear from the above that four aspects need to be discussed:

1. The will itself

2. The testator

3. The legatee

4. The legacy

1. The Will Itself

There is a discussion between jurists as to whether a will is a contract between two parties that in common with all contracts requires offer and acceptance, or if it is an initiative established by one party without need for formal acceptance by the named executor.

In light of the similarities between wills - Wasiyyah tamlikiyah – and 'deeds of gift' – ‘aqd al-hibah - we support the first opinion. The only difference between the two is that in the former, property transference occurs after the death of the donor while in the latter, the transference occurs during the donor's lifetime.

Having asserted that Wasiyyah tamlikiyah is a contract, it requires, as with all other contracts, both offer and an acceptance. The reason why some jurists thought that it was not a contracted arrangement is that the legatee does not pay anything in exchange for the bequest. Notwithstanding that, there is no necessity for a contracted arrangement to include an exchange of property; for example, one may offer one's professional services free of charge.

Furthermore, the only occurrence under Islamic and possibly all other legal systems - in which transference of property is automatic and without need of contractual acceptance - is 'inheritance'. In other words, it is an exception to the general rule.

No Terms That Transgress Islamic Law Are Valid

An essential requirement for validity of a will is that its terms be acceptable under Islamic law. It is therefore not permissible for a will to include terms such as:

The legacy is to be used to establish centres that promote ‘sinful’ activity.

The legacy is to be used to publish materials to mislead others.

The legacy is to be used to support political agendas that are likely to result in societal discord.

As seen in chapter 16, ‘Not to cooperate in the perpetration of sinful actions’, Islamic law does not sanction Muslim participation in sinful acts.

Can One Cancel Or Amend One's Last Will And Testament?

People may, of course, at any time - verbally, in writing, or by their actions ­ change, amend, alter or revoke a previously drawn-up will. For verbal revocation or alteration, two reliable witnesses are required. For written revocation or alteration, a declaration needs to be made to the effect that the will being currently drawn up is one's ‘last will and testament’, and it must be clearly dated to evidence that it has been affected subsequent to all previous wills.

An example of an action that revokes a will is the sale of property specified in the will. Ahadith from the error-free Imams (‘a) record that:

• Imam ‘Ali (‘a) said, ‘The living may vary or cancel the terms of their Wills.’

• Imam ‘Ali Ibn al-Husayn (‘a) said, ‘one may bequeath a gift or change one's mind about it at any time prior to death.’

• Imam al-Sadiq (‘a) said, ‘A testator may revoke her/his Will at any time.’2

2. The Testator

For a will to be valid a testator must be adult, mature, of sound mind and not subjected to duress - the prerequisites for all valid transactions. The only exception to this rule concerns the acceptability of a teenage testator's will. Although commencement of responsibility and accountability, with regard to 'acts of worship', is commonly considered by jurists to begin when boys complete their fifteenth year and girls enter their tenth year, there are ahadith that refer to boys of ten being entitled to make their own wills.

• Muhammad Ibn Muslim reports that Imam al-Sadiq (‘a) said, 'If a teenager writes a Will but dies prior to attaining majority, the only terms that have legal validity are those that concern relatives.'

While this hadith does not specify the age of testators who have not attained majority, it restricts the validity of their wills to relatives.

• Abu Basir reports that Imam al-Sadiq (‘a) said, 'When a boy is ten years old he may bequeath one-third of his assets to charitable causes.'

• ‘Abdul Rahman Ibn Abi ‘Abdullah reports that Imam al-Sadiq (‘a) said, 'A ten-year-old boy's will is legally binding.'

• Zurarah reports that Imam al-Sadiq (‘a) said, 'A boy of ten years old is entitled to make charitable donations and reasonable bequests.'3

Based upon the above ahadith, the majority of Shi’ah jurists concur that by ten years old, boys are able to make reasonable charitable donations and bequests.4 While the Maliki and Hanbali schools of law share this view, the Hanafi and Shafi’i schools do not.5

3. The Legatee

Can a beneficial heir also be specified as a legatee?

The four schools of Ahl al-Sunnah all concur that an heir may not inherit specified assets of an estate over and above their prescribed share. They base such decision on ahadith in which Abu Amamah reported that the Prophet (S) said, 'Allah has given every heir what they deserve, so no heir is entitled to receive anything further from the deceased's estate.'6

These schools also cite another hadith in which the Prophet (S) is reported to have said, ‘No heir may be an additional legatee unless all the other heirs approve.’7

In contrast, Imamiyah and Zaydiyah jurists acknowledge that heirs are entitled to receive, in addition to their prescribed share of an estate, any property that has been specifically bequeathed to them in a will - without the need for any approval. They base this upon the ayah with which we opened our discussion:

"It is prescribed for you, when death approaches (any) one of you, and if he leaves behind wealth for parents and near relatives that he makes a bequest in a fair manner - (this is) a duty (incumbent) on the pious ones." (Surah Al-Baqarah, 2:180).

As it is clear that no hadith may contradict an explicit ruling of the Qur'an, it does not require a great exertion to refute the previous ahadith. This ruling has been emphasized by more than ten reports related by the error-free Imams (‘a).

In his attempt to endorse the opinions of the four schools of Ahl al­Sunnah, Dr Zuhaili writes, ‘Giving preference to a particular heir over the others would lead to disputes and enmity and stimulate jealousy and hatred between blood relatives. That is why the Prophet (S) made the approval of all the heirs a condition for one of their number receiving specified property in the Will.’8

It is interesting to note that in the Qur'an Allah Almighty awards male heirs twice the share of female heirs without regard to consideration of enmity or strife being established between heirs.

Can A Non-Muslim Be A Legatee?

This category encompasses three groups:

1. Non-Muslims who are under the protection of the Islamic state (Dhimi) - who are blood relatives

2. Non­Muslims who are under the protection of the Islamic state (Dhimi) - who are not blood relatives

3. Non-Muslims who are at war with the Muslim state (Harbi).

Whilst jurists from the different schools of thought all agree that people in group (3) are not entitled to inherit or receive property bequeathed to them by any Muslim, they differ regarding groups (1) and (2). One can justify their agreement regarding group (3) in the light of the probability that such bequests could be spent to promote hostilities towards Islam and Muslims.

Al-Muhaqiq al-Hilli (in Sharaye’ al-Islam, Vol. 2, p. 253) believes that only group (1) have a right to property that has been bequeathed to them.

His ruling is based upon the following Qur'anic ayah:

Allah does not forbid you to deal justly and kindly with those who fought not against you on account of religion nor drove you out of your homes. Indeed, Allah loves those who deal with equity. (Surah Al-Mumtahana, 60:8).

However, ‘Allamah Hilli (in Qawa’id al-Ahkam, Vol. 1, p. 293) and Al­Muhaqiq al-Karaki (in Jami al-Maqasid, Vol. 10, p. 51) believe that both groups (1) and (2) are entitled to receive bequests. They base this on a report that Imam al-Sadiq (‘a) said,9 'If a person appoints me to be the executor of a will, in which he has made a specific bequest to a Jew or Christian, I would comply with his wishes because Allah tells us in the Qur'an:

'Sin rests with anyone who alters [a will] after hearing it.' (Surah Al-Baqarah, 2:181)

Furthermore, in Qur'an (60:8) Allah makes no reference to any restrictions that require a legatee to be a relative for a will to be valid - a powerful argument in support of ‘Allamah Hilli's opinion.

Can A Muslim Bequeath Her/His Assets To Pet Animals?

In Qawa’id al-Ahkam, ‘Allamah Hilli states, 'If a person bequeaths something to an animal, that article of their will is to be considered invalid because for bequests - wasiyyah tamlikiyah - both offer and acceptance are required and it is not possible for acceptance to be received from an animal. Of course, it is perfectly acceptable to leave provision for the care of one's animals.' This opinion is supported by Al-Muhaqiq al-Karaki10 and by Hanafi, Shafi’i and Maliki jurists.11

Is It Necessary For A Legatee To Exist At The Time A Will Is Drawn Up?

While one is clearly not able to bequeath anything to those who have already passed from this world, it is perfectly natural to wish to bequeath something for one's family's future offspring. The only point of debate regarding this issue is if such action is to be considered within the category of wills - wasiyyah - by which ownership is transferred, or within the category of endowments - waqf - that concern beneficial interests rather than ownership.

4. The Legacy Or Bequest

The legacy must meet the following requirements:

1. It must exist as property not simply as a right to something.

A right to revive barren land does not constitute property and thus cannot be bequeathed.

2. It must have a lawful usage.

Musical instruments, gambling equipment and wineries are not considered suitable as bequests.

3. It is not to exceed one-third of the total assets, unless the heirs willingly approve of such bequests.

This is based upon ahadith from the Holy Prophet (S) and error-free Imams (‘a).12

Wasiyyah ‘Ahdiyah

The above issues have all concerned the transference of ownership of bequeathed property. We now examine the issues concerned with the execution of a will - Wasiyyah ‘ahdiyah. This concerns the administrative duties to affect a will - appointment of guardians for minors and the safe­guards needed to ensure that the articles of a will are fulfilled in strict accord with the wishes of the testator, etc.

Sanity and maturity are two prerequisites for executors. Jurists differ regarding a third prerequisite, namely 'being a righteous and trustworthy person'. To most jurists it is clear that executors need to be both trustworthy and righteous. However, there are others who consider it the prerogative of the testator to choose whomever they wish to deal with their affairs after their demise.

However, if an executor is deemed not to be up to the task, the jurist in charge of people's affairs will appoint an assistant to discharge the responsibilities.

• 1. Wasa'il al-Shi’ah, Vol. 19, p. 258.
• 2. Wasa'il al-Shi’ah, Vol. 19, p. 303.
• 3. Wasa'il al-Shiah Vol. 19, pp. 361-362.
• 4. Al-Ghunyah, Tathkirat al-Fuqaha and Sharaye’ al-Islam.
• 5. Al-Fiqh al-Islami wa Adillatuhu Vol. 8, p. 26.
• 6. Al-Sihah al-Sittah other than Nisa'i.
• 7. Nail al-Awtar Vol. 6, p. 40.
• 8. Al-Fiqh al-Islami wa Adillatuhu Vol. 8, p. 41.
• 9. Al-Kafi Vol. 7, p. 15.
• 10. Jami al­Maqasid, Vol. 10, p. 49.
• 11. See Al-Fiqh al-Islami wa Adillatuhu Vol. 8, p. 35.
• 12. See for example Wasa'il al-Shi’ah, Vol. 19 pp. 271-281.