Islamic Will Explained

In the last issue, I wrote about the Malay Inheritance Dilemma. Basically, it was about the dilemma brought about due to the lack of understanding of the Faraid (Islamic Law of Inheritance) and the family feuds which resulted therefrom, which was compounded by the unscrupulous and dishonest administrators appointed to settle the estate.

In this issue, I wish to highlight the Islamic Will, a much misunderstood document.

What is an Islamic Will?

To understand the concept of an Islamic Will, one must understand a few other Islamic concepts:-

(1) Wasiyyah :

The Muslims in Malaysia call this document a ‘Wasiat’. It basically means the testamentary bequest limited to one-third (1/3) of the Testator’s estate and can only be given to non-heirs as defined in the Holy Quran. This means that the general bequest can be made to adopted children and adopted parents and is usually meant for charitable purposes including to the mosques, religious organizations and orphanages. It has to be reminded that under Islamic Law, heirs and family members do not exactly mean the same people.

(2) Wisoyah :

This concept is hardly known in Malaysia, however, it is widely practiced in the Middle East especially in Egypt, whose Islamic Inheritance procedures are quite well established. The Wisoyah is basically a trust document which appoints a Wasi (Trustee) almost akin to the Executor appointed under the English Will. The responsibility of the Wasi (Executor) is to assemble the assets of the deceased, to pay off debts, implement the wishes of the Testator in respect of the Wasiyyah , the ‘Harta Sepencarian’ (property acquired and accumulated during marriage), the unexecuted ‘Hibah’ (Islamic lifetime gift) if applicable, and finally to distribute the residue of the estate to the Heirs (Waris) according to the Faraid, the Islamic Law of Inheritance. It is the over-riding principle that all the above matters must not be in contravention or contradiction to the basic principle of the Islamic Law. This Islamic concept must be compared and contrasted against the English Law concepts of testate and intestate properties :-

(i) Testate :

This term basically means that the property left behind by the deceased is provided for in a Will and an Executor has been appointed by the deceased before his death to implement his wishes relating to the distribution of the property to the chosen beneficiaries who may or may not be his family members which in the English Law is also called heirs. All properties movable and immovable must be stated in the Will otherwise they will become intestate properties. *Upon death, the Executor will apply for the Grant of Letters of Probate by proving the Will or authenticating the Will ie getting the Will endorsed by the High Court by showing that the Will had complied with all the formalities and procedures under the Wills Act and the Probate and Administration Act .*

(ii) Intestate :

This term refers to the properties of the deceased person who has not left a Will i.e he has not appointed an Executor prior to his death nor has he planned his estate i.e he has not provided who is supposed to get what upon his death. His family members will, by consensus, appoint an Administrator who will apply for the Grant of Letters of Administration.

To grasp a clear understanding of the Islamic Will, one must have a clear understanding of the concept of Wasiyyah and Wisoyah in the Islamic Law and the English Law concept of the testate and intestate properties. This is imperative as the Islamic Inheritance Procedures in Malaysia are still governed by the Civil Law (read English Law) and regulated by the Probate and Administration Act 1959 and the Small Estates Distribution Act 1959. In addition, the non-Muslim estates are regulated by the Distribution Act 1959 and the Wills Act 1959.

The Administration of Estates : A common problem.

So why write a Will or an Islamic Will for that matter? For non-Muslims, writing a Will would be to expedite the process of the settlement of the estate; the assets of the estate are unfrozen or unlocked faster compared to if they were intestate properties without a Will. It is common knowledge that extracting a Grant of Letters of Administration would take a longer time (sometimes double the time) than that to extract a Grant of Probate, where there is a Will involved. In addition, one can determine the distribution to one’s loved ones instead of allowing the same to be decided by the Distribution Act 1959.

For Muslims, the essence of writing a Will only relates to the appointment of the Wasi (Executor). Since the Islamic Will does not come under the purview of the Wills Act, there are presently no such provisions in the Civil Law which provides for the procedures for the Islamic Will saved and except that, the Islamic Will can be construed as the testamentary document within the context of the Probate and Administration Act 1959, which will allow it to be submitted as the document to obtain the Grant of Probate thereby allowing Muslims the same advantages as Non-Muslims. The distribution of the estate properties is already determined by the Faraid (the Islamic Law of Inheritance) i.e who gets how much etc; however, the same can be waived if all the heirs consent to a differing distribution formula.

*If I may make an analogy to put the Will-writing problem in a proper perspective, I would like to compare writing a Will, be it for Muslims and non-Muslims alike, to buying a ‘touch & go’ card. By buying a ‘touch & go’ card, our journey on the highway through the tollgate would be smooth sailing as opposed to those having to pay cash. Similarly, on the highway of life, the tollgate also marks the ‘end of the road’. The only difference is, the tollgate is for your assets you leave behind while you go through another ‘gate’. Your assets would then be ‘expeditiously processed’ at the tollgate as an Executor had been appointed to do the ‘processing’.

Meanwhile, as you have passed on, your loved ones are anxiously waiting on the ‘other side’ of the tollgate for the ‘arrival’ of the assets. Compare this with a situation where the ‘touch & go’ card is not used, it becomes like an airport baggage carousel where there are bags without tags and where no one is ‘administering them’. Obviously your loved ones will have a longer wait and will have to endure prolonged ‘anxiety’ due to our lack of foresight.*

Let us now revert to the Wasiyyah and Wisoyah concepts. It is the writer’s contention that there has been a serious misconception on the understanding of the Islamic Will concept which has led Muslims in Malaysia, at least, to be confused that writing a Will is not important and relevant. What is critical to understand is that writing a Will, whether be it for Muslims or non-Muslims, does not mean that you are planning to die; you are merely ensuring your assets are not stuck longer than is necessary and that your final wishes and last instructions are followed.

This means appointing a trustworthy Executor prior to death who will expedite the process of settlement of the Estate i.e unlocking the frozen assets and settling your debts and following your last instructions as long as it complies with the Wills Act for non-Muslims and the Islamic Law of Inheritance for Muslims.

This misconception arose because Muslims felt that the Wasiyyah was actually the Islamic Will (as defined by the English Law) and since the bequest was limited to non-heirs (which are normally not family members with the exception of adopted children), they saw no purpose in writing a Will because they felt that it is their family members which needed to be protected and not anyone else. This gave an unfair description of the divine Quranic laws.

The Wasiyyah is actually meant for charitable and philanthropic purposes. It is meant for non-heirs because the Quran had already provided for heirs and to protect the heirs, the Quran limits the charitable bequests to one-third of the Estate because the heirs should not be left wanting and in financial difficulties. This is to be contrasted and compared to Non-Muslims’ Wills where one can make a bequest to anyone even non-family members and for whatever value of the estate for as long as it complies with the Wills Act and does not go against public policy.

It is further the writer’s contention that the Wisoyah document is the real Islamic Will Document and not the Wasiyyah Document. The writer goes further to call the Wisoyah document the Islamic Will Document and to make the differentiation complete, the Wasiyyah document should be called the Islamic Bequest Document. The essence of the Wisoyah (Islamic Will) is the appointment of the Wasi (Executor) and is based on the trust concept, which is carrying out the last wishes and instructions of the Testator for as long as they are not in contravention of the Islamic Laws. On the other hand, the essence of the Wasiyyah document is the gifting, which is the testamentary bequest for charitable purposes limited to one-third of the estate to non-heirs.
In conclusion, it is the writer’s opinion that this misconception in the understanding of the true nature of the Islamic Will, has resulted in the large majority of adult Muslims in Malaysia, totalling almost 10.0 million people in not writing Wills. *For the record, according to a newspaper report from the Small Estates Department of the Ministry of Lands and Mines (as it was then known), in 2002,* more than RM3.0 billion worth of assets are stuck pending settlement of estate due to family squabbles or non-distribution, which could have been settled had the deceased planned his inheritance. Just imagine the loss to the country in terms of unproductive assets. It must be remembered that writing a Will does not mean that you are planning to die; you are planning for your loved ones to live well after you are gone. To do so, one should appoint a trusted person to administer one’s estate; this applies to everyone, Muslims or otherwise.