Rules Regarding The Writing Of A Will
Now that we have become familiar with some of the traditions concerning the remembrance of death and repentance for one’s sins, it is appropriate to discuss another topic of great importance that must be reviewed before one’s death - namely, the writing of a Will.
One of the most important topics, which has been greatly emphasized in Islam, is the writing of the Will. It has been narrated by Imam Ja’far al-Sadiq (‘a) that:
من مات بغير وصية مات ميتة جاهلية
“One who dies without a Will, dies the death of one during the days of Ignorance (Pre-Islamic age)”1.
لا ينبغي أن يبيت إلا ووصيته تحت رأسه
In another hadith, it is mentioned that it is better that when a Muslim intends to go to sleep, he keeps his Will underneath his pillow.2
In a hadith narrated by Abu Sabah Kanani, Imam Ja’far al-Sadiq (‘a) was asked regarding the reality and truth about the Will, and he replied, “This is an issue which is firmly rooted (in Islam), and is a necessity for every Muslim”3.
The Correct Will In Islam
With all the emphasis that has been placed on the writing of a Will, it is also necessary to learn the correct procedure of writing a Will, as taught to us by the Prophet and the Infallible A’immah (Peace be upon them). A correct Will is the one in which when one goes through it, he is satisfied that the rights of each of the inheritors have been observed, and none of them have been placed in a loss or disadvantage.
عن جعفر بن محمد، عن أبيه (عليهما السلام) قال: قال علي (عليه السلام) من أوصى ولم يحف ولم يضار كان كمن تصدق به في حياته.
Ja’far Ibn Muhammad (‘a) narrates from his fore-fathers (‘a) that ‘Ali (‘a) said, “The reward of a person who writes a Will in which there is no oppression or injustice and no one is put in a disadvantage or loss, is just as a person who spent all of his wealth (in the way of Allah (SwT)) during his life)”4.
عن جعفر بن محمد، عن أبيه (عليهم السلام) قال: من عدل في وصيته كان كمن تصدق بها في حياته ومن جار في وصيته لقى الله عز وجل يوم القيامة وهو عنه معرض.
In another hadith from Ja’far Ibn Muhammad (‘a) from his father (‘a) that he said, “A person who observes justice in writing his Will, is just as a person who during his lifetime has spent it (in the Way of Allah (SwT)). As for the person who commits oppression while writing his Will (meaning he does not adhere to the commandments set down by Allah (SwT) in relation to the rights of his inheritors), he will meet Allah (SwT) on the Day of Resurrection in such a condition that He will have turned away from him”.5
Willing 1/3 Or 1/5 Of One’s Wealth?
Once a person leaves this world, he loses the power of choice over his wealth and has no say in how his wealth should be spent. This can be averted if during his life, he had written a Will. In the Will he can specify that 1/3 of his wealth be spent in a certain way (as he desires).
عن علي بن يقطين قال: سألت أبا الحسن (عليه السلام): ما للرجل من ماله عند موته؟ قال: الثلث، والثلث كثير.
‘Ali Ibn Ibn Yaqtin, said, “I asked Aba al-Hasan (‘a) what amount of wealth a person is allowed to allot for specific uses after his death?” The Imam (‘a) replied, “He can specify 1/3 of his wealth, but even 1/3 is too much”6.
قال علي (عليه السلام): الوصية بالخمس لأن الله عز وجل رضى لنفسه بالخمس
In a hadith from Amir al-Mu’minin ‘Ali (‘a) he has said, “The (best) Will is that in which a person allots 1/5 for a specific use since Allah, The Glorious and High, in the Ayah referring to Khums, is pleased with the amount of 1/5”7.
This is a small sample of the Ahadith referring to the importance of the Will. We will now discuss this topic from the Fiqhi point of view, according to the fatawa of the Grand Marja’ Taqlid of the Shi’a World, Ayatullah al-’Uzma al-Hajj as-Sayyid ‘Ali al-Husayni as-Sistani.
Rulings
Rule 1
A Will is written to direct that after one’s death:
A certain task should be completed.
A portion of his property is to be given in ownership to someone.
The ownership of his property be transferred to someone else.
His wealth be spent for charitable purposes.
He appoints someone as a guardian for his children and dependants.
A person who is to give effect to a Will is called an executor (Wasi).
Rule 2
If a person who is dumb (mute), can make himself understood by means of signs, then he can Will for anything he likes; and even if a person who can speak, makes a Will by means of signs and makes himself understood, his Will is valid.
Rule 3
If a written paper is found signed and sealed by a deceased person, and if it is known or implied that he wrote it as a Will, then it must be acted upon. But if it is known that he did not have an intention to make any Will, and that he had simply made some notes for a Will to be written later, then it will not be considered as a Will.
Rule 4
A person making a Will must be Baligh, sane, and he should not be one who wastes his money. Moreover, the Will must have been made by one’s own choice and not by being compelled. A Will made by a non-Baligh child is invalid, but if a child of ten years of age Wills for the benefit of his blood relative, or for general charity, then that Will is valid. However, if he Wills for the benefit of those other than his blood relatives, or if a seven-year-old child Wills that a certain part of wealth be for someone, or be given to someone, then that Will is a matter of difficulty, and in both cases, precaution must be observed.
As for the who wastes his money, his Will which relates to his property is not valid, but in matters other than the property, like in matters of some tasks or duties to be performed for the deceased, his Will is valid.
Rule 5
If a person who injures himself intentionally or takes poison, such that death becomes certain or probable, makes a Will that a certain part of his property be put to some particular use, then his Will would not be in order.
Rule 6
If a person makes a Will that something from his property will belong to someone else, and if that person accepts the Will, then even if his acceptance took place during the lifetime of the testator, that thing will become his property after the death of the testator.
Rule 7
When a person sees the signs of death approaching in himself, he should immediately return the things held in trust by him to their owners, or he should inform the owners (acting according to the details mentioned in rule number 194). In addition, if he is indebted to others, and the time for repayment of the debt has matured, or if the creditors make the demand, then he must repay the debt. If he is not in a position to repay the debt, or the time for its repayment has not yet matured, or the creditor has not yet demanded it, then he should make arrangements to ensure that his creditor will be paid after his death, such as by making a Will to inform those who are unaware of the debt and also appoint a witness to the Will.
Rule 8
If a person who sees the signs of death approaching in himself has a debt of Khums, Zakat, or other liabilities, and if he cannot make the payment immediately, then he must make a Will directing payment if he owns some property, or if he knows someone will pay the debts on his behalf. The same rule applies if he had Hajj obligatory upon him. However, if he is capable of paying his religious dues immediately, he must pay them at once, even if he sees no signs of impending death.
Rule 9
If a person who finds signs of death approaching in himself, has lapsed (Qadha) of some prayers and fasts due, then he must direct in his Will that a person be hired, and paid from his estate for their performance. In fact, even if he does not have any estate, but feels it probable that someone would perform them without taking any fees, then it is obligatory upon him to make a Will in this behalf. In addition, if he has someone like his eldest son who would perform them, then it is sufficient to inform him about it and it is not obligatory to Will in that respect.
Rule 10
If a person who finds signs of impending death in himself has deposited some property with someone else, 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, then he must inform them about it. Also, it is not necessary for him to appoint a guardian, or an administrator for his minor children, except when it is feared that their property may perish, or that they themselves may be ruined without an administrator, in which case, he must appoint a trustworthy administrator for them.
Rule 11
The executor of the Will (Wasi) must be sane and trustworthy in matters related to the testator, and as a precaution, in matters related to others. Moreover, it is necessary as a precaution that the executor of a Muslim must be another Muslim. To appoint a non-Baligh child alone for putting the Will into effect is not permissible if the said child is expected to exercise discretion without permission of the guardian. However, if the child is directed to put the Will into effect after having become Baligh, or with the permission of the guardian, then there will be no objection.
Rule 12
If a person appoints more than one executor, allowing each of them to execute the Will independently, then it will not be necessary that they should obtain permission from one another for the execution of the Will. If he had not given such permission - whether he had said that or not that both of them should execute the Will jointly, they must execute the Will in consultation with one another. And if they are not prepared to execute the Will jointly, and this unwillingness is not accompanied by any religious misgiving, then the Mujtahid can force them to do so, and if they do not obey his orders or any one has a religious excuse for not being prepared to act jointly, then the Mujtahid can replace the dissenting executor.
Rule 13
If a person retracts a directive in his Will; for example, if he first says that 1/3 of his property must be given to a person, and then says that it must not be given to him, then the Will becomes void. If he changes his Will; for example, if he appoints an administrator for his children, and then replaces him with another person, then his first Will becomes void, and his second Will must be acted upon.
Rule 14
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 in spite of his original wish, then the Will becomes void.
Rule 15
If a person makes a Will that a particular thing must be given away to someone, and later changes it to say that half of the same thing must be given to another person, then that thing must be divided into two parts, and one part must be given to each of them.
Rule 16
If a person who is on his death-bed, bestows a part of his property as a gift to a certain person and makes a Will that after his death another quantity be given to yet another person, and if both the gifts exceed one-third of his estate and the heirs are not prepared to approve the excess, then in that case the first endowment must be given to the first beneficiary, and whatever remains from one-third must be spent according to the Will.
Rule 17
If a person makes a Will that 1/3 of his property must not be sold and its income must be spent for some particular purpose, then his instructions must be followed.
Rule 18
If a person during his terminal illness says that he owes a certain amount to someone, and if he is suspected of having said that to harm his heirs, then that amount specified by him must be given out of 1/3 of his property; and if he is not suspected of any such motive, his admission will be valid and the payment must be made out of his estate.
Rule 19
If a person makes a Will that something should be given to another person, then it is not necessary that that beneficiary be existing at the time of the Will. Therefore, if he makes a Will that something be given to a child who may possibly be born from a particular wife, then it is necessary that the thing must be given to the child if he is born after the death of the testator. If he is not born and if the Will is construed as general, then it must be spent in a manner, which would be nearer to the object of the Will, according to the testator.
However, if he makes a Will that after his death, a portion of his property will be owned by a particular person, and if that person exists at the time of the death of the testator, then his Will would be in order, otherwise it is void, and whatever he willed for that person must be divided by the heirs amongst themselves.
Rule 20
If a person comes to know that someone has appointed him as his executor, and he informs the testator that he is not prepared to perform the duties of an executor, then 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 does not inform the testator that he is not prepared to act as an executor, then he must 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 or some other hindrance, the testator cannot appoint any other executor, then he must accept the appointment, on the basis of precaution.
Rule 21
After a testator dies, the executor cannot appoint another person to execute the Will and withdraw himself. However, if he knows that the deceased did not mean that the executor should execute the Will himself, (rather) what he wanted was only that the given work should be accomplished, then he can appoint another person on his behalf.
Rule 22
If a person appoints two persons as joint executors and if one of them dies, become insane, or becomes an apostate, then the Mujtahid will appoint another person in his place. If both of them die, become insane or apostates, then the Mujtahid will appoint two people in their place. However, if one person can execute the Will, then it is not necessary to appoint two for that purpose.
Rule 23
If an executor alone cannot perform all the tasks laid down in the Will of the deceased even by appointing someone as his agent or by hiring someone else, then the Mujtahid will appoint someone to assist him in his duties.
Rule 24
If some quantity from the property of a dead person is lost or damaged while in the custody of the executor, then if he had been negligent in looking after it or had gone beyond moderation, he will be responsible. For example, if the dead person had willed him 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 perished, then he will be responsible for it. But if he was neither neglectful nor immoderate, then he will not be responsible for the loss.
Rule 25
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, then the second executor must perform the tasks laid down in the Will of the deceased, after the death of the first one.
Rule 26
If an obligatory Hajj remained unperformed by the deceased person, or debts like Khums, Zakat and Mazalim (wealth wrongly appropriated) which were obligatory upon him to pay but were not paid, then they must be paid from the estate of the deceased though he may not have directed it in his Will.
Rule 27
If the estate of the deceased exceeds his debt, and expenses for an obligatory Hajj, obligatory religious dues like Khums, Zakat and Mazalim, and if he has also willed that 1/3 or a part thereof of his property be put to a particular use, then his Will must be followed; and if he had not made a Will, then whatever remains is the property of the heirs.
Rule 28
If the disposal specified by the deceased exceeds 1/3 of his property, then 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 actions. Their unexpressed approval will not suffice and even if they give their consent after some time, it is in order. However, if some heirs permit and others decline to give consent (to the Will being acted upon), then the Will is valid and binding only in respect to the shares of those who have consented.
Rule 29
If the dispensation specified by the deceased exceeds 1/3 of his property and his heirs give consent to that dispensation before his death, then they cannot withdraw their permission after his death.
Rule 30
If a person makes a Will that Khums and Zakat and other debts due on him must be paid out of 1/3 of his property, and also someone should be hired for performing his Qadha prayers and fasts, and also perform Mustahab acts like feeding the poor, then the precaution will be that his debt must be paid first out of the 1/3 of his property, and if there is a balance remaining, then a person should be hired to perform his Qadha prayers and fasts, and if there is still a surplus, 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 also do not permit that anything more than the 1/3 of his property should be spent, then his Will in respect of prayers, fasts, and Mustahab acts is void.
Rule 31
If a testator wills that his debt should be paid, 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 must be paid from his estate, and if anything remains, 1/3 of it must be spent on prayers and fasts and Mustahab acts specified by him. If that 1/3 is not sufficient and if his heirs permit, then his Will should be implemented by paying from their share, and if they do not permit, then 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.
Rule 32
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, then the amount claimed by him must be given to him.
And if only one ‘Adil woman bears witness, 1/4 of the amount claimed by him must 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 must be given to him.
Also, if two non-Muslim males from amongst Ahl al-Kitab (The People of the Book), who are esteemed as ‘Adil in their own religion confirm his statement, and if the deceased was obliged to make a Will while no ‘Adil man and woman was present at that time, then the amount claimed by that person must be given to him.
Rule 33
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, then his statement should be accepted only if two ‘Adil men confirm it.
Rule 34
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, then his heirs can accept it as long as they do not reject the Will. However, this order applies when the testator does not retract his Will, otherwise the beneficiary has no right to lay claim on that thing.
