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WILLS, WASIYYAH

AND WISAYAH
Wills, wasiyyah and wisayah considered as
basic legal instruments with regard to
estate planning.
Important to understand because :
i. it facillitates the estate distribution process
considerably.
Ii. Tools applied to protect the legal heirs
interest in facilitating the distribution of the
estate.
Wills from Civil Law Perspective :
Declaration intended to have legal effect of
the intention of a testator with respect to
his property or other matters which he
desires to be carried into effect after his
death and include a testament, a codicil and
an appointment by Will or by writing in the
nature of a Will in exercise of a power and
also a disposition by Will or testament of a
guardianship, custody and tuition of any
child (Section 2(1) of the Wills Act 1959).
Wills from Islamic perspective : Muslim wills
(Selangor) : It is defined as an iqrar of a person
made during his lifetime with respect to his
benefit thereof, to be carried out for the purpose
of charity or for any other purpose permissible
by the Islamic law after his death.
Iqrar : an admission made by a person in writing
or orally or by gesture, stating that he is under
an obligation or liability to another person in
respect of some right.(when I die, my car is to be
given to C) this is a valid pronouncement of the
wasiyyah.
Person includes a body or persons;
corporate or unincorporated
Property : movable or immovable
property, any interest in any movable
property, any right, title,claim, chose-
in-action, whether present or future
or which is otherwise of value in
accordance with Islamic law.
Wasiyyah literally means connection, the
good deed accomplished by the deceased
during his lifetime and upon death he will
continously receive the rewards for that.
Tehnically :It is a gift of property by its
owner to another contingent on the givers
death. Or
An act of giving away ones property in his
lifetime but it is effective upon the death of
the giver.
Wasiyyah should not be considered as a bad
omen.
Some persons think that wasiyyah is a sign of
death or passing away, while wasiyyah is a kind
of providence and farsightedness.
According to Islamic scholars, leaving a
wasiyyah is of course incumbent when the one
is in debt to people or there is a religious duty
upon the one which must be fulfilled.
These duties may be such as zakat, hajj etc.
Leaving wasiyyah is emphatically praiseworthy
The ruling of making wasiyyah was
originally compulsary al-Baqarah, 180-
182)
General rule in making the gift (wasiyyah)
i. NO bequest in favour of heirs. Stated in
hadith of Sunan Abi Dawwud there is no
wasiyyah in favour of legal heirs
Bequest SHALL NOT exceed one-third of
the entire estate after paying out the
testators debt.
Reason for this : upon the death of deceased his
estate passes immidiately to the legal heirs and
hence, the exeeding amount would be
tantamount to an encroachment
Wasiyyah restricted with the term bil makruf,
means it must be reasoanable in all aspects.
A person is allowed to review the amount, the
manner and the executor of the wasiyyah as long
as he is alive.
Wasiyyah as a means of repairing our given
shortcomings- if some of our relatives had
shown unkindness to us, we display affection to
them by the way of wasiyyah.
Two important rules in making wasiyyah :
i. The wasiyyah should not be made in favour of
entitled legal heirs.
If a wasiyyah made in favour of an entitled legal
heir, it is considered not valid
the hadith says that there is no wasiyyah in
favour of legal heirs. The scholars argued that
the meaning of legal heirs (warith) refers to the
entitled legal heirs.
There is no need to get consent from non-
entitled legal heirs as the wasiyyah does not
affect their inheritance entitlement at all.
ii. The quantum of the wasiyyah must not exceed 1/3 of the
whole estate.
Based on the hadith narrated by Bukhari n Muslim
mentioned that a wasiyyah exceeding the limit of 1/3 is not
valid.
Therefore the consent of legal heirs is needed if the amount
is exceeding 1/3 of the estate. If they approved, the
wasiyyah become effective.
Wasiyyah restricted with the term bil makruf shows that it
must be reasonable in all aspects. It should be done in a
fair manner both from the point of amount of wealth and in
respect of the person to whom the wasiyyah is addressed.
The testator is not restricted by Islam to what he has
bequeathed himself, he is allowed to review the amount,
the manner, and the executor of the wasiyyah as long as he
is alive, because when the time passes, circumstances may
vary and his attitudes upon the aforementioned subjects
change too.
i. where a bequest is made to a person who is not
an heir within the limit of 1/3 of the testators net
estate after the payment of his debts, the bequest
shall be given effect without the heirs consent.
ii. A bequest made to an heir in excess of 1/3 shall
not be given effect unless the heirs consent to it
after the testators death.
iii. A bequest made by an indebted person shall
take effect only to the extent on his remaining
estate after the payment of his debts.
Wisayah : literally means trusteeship
Technically :making a request or entrusting
someone to do or implement something after the
giver of the trust (amanah) passes away or in his
absence.
Hukm of making wisayah depends on the condition
of the owner.
Recommended- settling debts, like returning
borrowed objects , maintain the welfare of minors.
Compulsary : upon a father to appoint a
trustworthy muslim in order to administer the
property of his minor sons and daughters if he
believes that by not doing so, their property
would be usurp by irresponsible individuals.
It is a trust document which appoints a wasi
(trustee) almost akin to the executor appointed
under the English Will.
Responsibility of wasi : to assemble the assets of
the deceased, pay off debts, implement of wishes
of the testator in respect of wasiyyah, harta
sepencarian, unexecuted hibah, if applicable, and
distribution of estet according to faraid.
making a request or entrusting someone to
do or implement something after the giver of
the trust (amanah) passes away or in his
absence.
The important matters regarding wisayah
documents :
i.appointment of executor
Ii. List of heirs
Iii. The distribution of estate
Iv. List of liabilities
V. specific instructions to the executor
Simmilarities and differences between Will Act
1959 and Muslim Wills Enactment
(Selngor)1999.