Preamble:
Two things are often misused interchangeably due to insufficient language for their conveyance, especially within the Yoruba speakers. These are Mi’raath (Inheritance) and Wasiyyat (Will/Bequeath). These two are often termed as Will (Ogun).
A bequeath/Will is defined as a transfer to come into operation after the Testator’s death. The Testator is called the Moosi and the Legatee of the devisee is called Musa Lahu. i.e. one to who a bequeath has been made, while the executor has been called the Waasi.
Introduction:
Allah in Quran Chapter 4 Sura AnNisaai verse 10-12 says:
- ‘And let those fear God who, if they should leave behind them their own weak offspring, would be anxious for them. Let them, therefore, fear Allah and let them say the right word.
- Surely, they who devour the property of orphans unjustly, only swallow fire into their bellies, and they shall burn in a blazing fire.
- Allah commands you concerning your children: a male shall have as much as the share of two females; but if there be females only, numbering more than two, then they shall have two-thirds of what the deceased leaves; and if there be one, she shall have the half. And his parents shall have each of them a sixth of the inheritance if he has a child; but if he has no child and his parents be his heirs, then his mother shall have a third; and if he has brothers and sisters, then his mother shall have a sixth, after the payment of any bequests he may have bequeathed or of debt. Your fathers and your children, you know not which of them is nearest to you in benefit. This fixing of portions is from Allah. Surely, Allah is All-Knowing, Wise.
Therefore making a Will, is a Divine instruction reiterated by the Holy Prophet Muhammad SalaLlahu Alayhi wa Sallam. The Holy Prophet Muhammad, SalaLlahu alayhi wa sallam was reported to have said, it is important that every believer makes his Will every night before he sleeps.
What is a Will? It can be said to be a spiritual testament of a Muslim enabling him to make up for his shortcomings in the worldly life and securing a reward in the Hereafter. According to Shariah, a Muslim is entitled to make a Will up to one-third of his estate and not beyond that, so that the rights of the legal heirs are not adversely affected. I will come back to this later.
What is Mi’raath? ‘Ilm al-Farā’id or ‘Ilm al-Mīrāth in Islamic legal terminology means inheritance knowledge of what to be divided from the property of a deceased Muslim among his successors/heirs. It is a Science in Islamic law that gives rules that guide as to who inherits and who is to be inherited; and what shares go to the heirs. It may also be defined as a science that stipulates the mechanisms of devolution of “anything that could be shared as belonging to those who have legal rights to take it after the death of the owner”.
Under Islamic law, the concept of succession was divinely ushered in with the revelation of inheritance verses “ Āyāt al-Mawārith” (which include Q4:11, 12 and 176). This inevitably abrogated the Jahiliyyah (Ignorance) practices of disinheriting women and legitimization of heirs by oath; thus, these and others were replaced by inheritance through fixed or Qur’ānic Shares ( Irth bi al-furūd), through agnatic method (Irth bi at-Ta‘sīb) and through the residuary process(Irth bi al-Arhām).
The Difference; the Holy Prophet Muhammad SalaLlahu alayhi wa sallam said, ‘No Wasiyyat for the Waarith’. Meaning, one who is a legal heir is not entitled to Wasiyyat/Bequeath. The reason is simple; Islam encourages giving and much giving. The Holy Prophet Muhammad SalaLlahu alayhi wa sallam said, ‘The hand that gives is more rewarding than the hand that receives’. The essence of making a will is to take care of those persons or things that are not legally permitted to inherit the testator. Also, it also saves the Testator from being favourably disposed to one of his heirs that others.
Making a Will: Ibn Umar (r.a.) reported that Allah’s Messenger SalaLlahu alayhi wa sallam, said, ‘It is the duty of every Muslim who has something which is to be given as bequeath not to have it for two nights without having his will written down regarding it.’ (Sahih Bukhari Book 13, Number 3987). Abdullah Bin Umar (r.a.) said, ‘ever since I heard this statement from the Messenger of Allah, SalaLlahu alayhi wa sallam, I have not spent a night without having my Will written along with me. (Reported in Number 3990 Sahih Bukhari)
Abu Huraira (r.a.) narrates that a person said to the Messenger of Allah, SalaLlahu alayhi wa sallam; My father died and left behind property without making a Will regarding it, would he be relieved of the burden of his sins if I give Sadaqah on his behalf? The Prophet answered, Yes’.
Will making according to English and Islamic Law:
Under the English Common Law, a Testator can bequeath his estate to anyone or anything. No limit is set for him or her. He is at liberty either to include his family members in his will or not. There are cases where a Testator has willed his estate to a dog! However, under Islamic Law, a Muslim is not permitted to share his inheritance while he is alive. The portion he shares is One-third to others who are not entitled to inherit him.
Making a will is a tradition of the Prophets of God. It is an avenue for them to again reiterate their message and ensure compliance after their demise. Hence, we have instances in the life of the Holy Prophet Muhammad SalaLlahu alayhi wa sallam, who clearly said, ‘I have left two things behind for you (Muslims) if you hold firmly unto them you shall not go astray, these are, Kitaaballah and my Sunnah’. In the Wassiyah of Hazrat Uthman Bin Foodi (Usman Dan Fodio) it has been written that after me will come the Mujadid of 14th Century who will be the Mahdi! The Promised Messiah alayhi salaam, gave us a Will.
In His monumental document, the Will, he has categorized his followers into three classes of believers, those in the class of 1/16; the class of 1/10; and the class of 1/3. The class of one-sixteenth is the Chanda Aam payers, while the two others are the Moosiyan. The Moosiyan are also encouraged to take some steps further and relinquish 1/10th of their estate to the Jama’at.
The Will is to be written every night before we sleep. This may also mean that we carefully review our activities every night before we sleep. Hazrat Imam Mahdi alayhi salaam once said, ‘Every morning should bear a witness that you spent the day with righteousness and every evening should bear a with that you went through the night with the fear of God in your heart’.
In the Will, the Testator will be able to instruct his heirs on what he prefers they do after his death and how he prefers that his estate be managed. All over the world, it is a common tradition that testaments of dead are often respected that his words while alive. Hence, the Prophet SalaLlahu alayhi wa sallam, was rightly guided to have advised that every Muslim who does not want his estate to be wasted after his death should make a Will.
It must be remembered that a Muslim cannot bequeath more than one-third of his property as Wassiyat, where he did and it was discovered, his bequest will be varied and returned to a third and the excess returned to the estate for sharing among the heirs.
Things that can and cannot be included in the Will:
- A testator cannot make a will requesting his legatees to recite Quran on a number of days or on a regular basis on fixed days after his death on his grave or in his house. This is considered Baatilatun, null and void under Shariah.
- You cannot make in your will a request that people should wail very well after your demise.
- You may include in your will that your heirs should continue to pay your Chanda after your death.
- You may include in your will that your heirs set aside a certain amount of money for the care of the orphans, needy, or the mosque.
- You may appoint the Jama’at as Administrator and Executor of your will.
Under the Shariah, the followings qualities are to be considered before appointing an Executor of the Will:
- Al-Bulūqh (Maturity)
- He must be a Muslim. It is also upheld that the judgment of a non-Muslim would be accepted if he embraced Islam after the death of the testator and before the execution of the bequest
- He must be Just (‘ādil)
- He must be trustworthy
- He must be capable of executing the bequest as stipulated by the testator.
It is hoped that we will not leave here except we have written our will. May Allah enable us to discharge our duties to Him and grant us the peace of paradise. Amin.
