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The Principles of Will
The Wills Act 1957 is the statute that governs the matter of will in Malaysia. However, this is only applied to non-Muslims but not applied to Muslims. The specific legislation on the matter of wills for Muslims is absent in Malaysia.
For Muslims in Malaysia, the disputes on wills will be adjudicated in the Syariah Court. The principles of will are based on the Syariah principles from the verses of the al-Quran, Sunnah, the practices of companions and Ijma., it is the obligation of all Muslims to distribute their estates by following the Surah al-Nisaa 4 verse 11, 12, 176 of the al-Quran.
Surah al-Nisaa 4 verse 11 which states “Allah enjoins you concerning your children: for the male shall be the like of the share of two females, and if there be two or more than two females, then for them shall be two-thirds of what he1 leaves; but if she be alone, then for her shall be a half; and for each of his parents a sixth of what he leaves, if he has children; but if he has no children, and his parents are his sole heirs, then it shall be a third for his mother; but if he has brothers, then a sixth for his mother, after paying off any bequest he may have made or any debt he may have incurred. Your parents and your children —you do not know which of them is likelier to be beneficial for you. This is an ordinance from Allah. Indeed Allah is all-knowing, all-wise.”, provided that the property is to be distributed after all the necessary expenses and debts are paid off. This verse also talks about the laws on the rights and entitlement of the legal heir’s son, daughter, mother and father.
Surah al-Nisaa 4 verse 12 states that “For you shall be a half of what your wives leave, if they have no children; but if they have children, then for you shall be a fourth of what they leave, after paying off any bequest they may have made or any debt they may have incurred. And for them it shall be a fourth of what you leave, if you have no children; but if you have children, then for them shall be an eighth of what you leave, after paying off any bequest you may have made or any debt you may have incurred. If a man or woman is inherited by siblings1 and has a brother or a sister, then each of them shall receive a sixth; but if they are more than that, then they shall share in one third, after paying off any bequest he may have made or any debt he may have incurred without prejudice.2 This is an enjoinment from Allah, and Allah is all-knowing, all-forbearing.”. This verse is similar to Surah al-Nisaa 4 verse 11, the difference in between is on the legal heirs where in this verse is for husband and wife.
Surah al-Nisaa 4 verse 176 states that “They ask you for a ruling. Say, ‘Allah gives you a ruling concerning the kal?lah:1 If a man dies and he has no children or parents, but has a sister, for her shall be a half of what he leaves, and he shall inherit from her if she has no children. If there be two sisters, then they shall receive two-thirds of what he leaves. But if there be several brothers and sisters, then for the male shall be the like of the share of two females. Allah explains the laws for you lest you should go astray, and Allah has knowledge of all things.” This verse focuses on the entitlement of the legal heirs of brothers and sisters of the deceased.
These verses regarding to the portions of the property to be distributed in the will, had repealed the obligatory law of Muslims to make a will as stated in Surah al-Baqarah 2 verse 180 which states “It is prescribed, when death approaches any of you, if he leave any goods, that he make a bequest to parents and next of kin, according to reasonable usage: this is due from the God-fearing” initially. According to Surah al-Ma?idah 5 verse 106 which states “O you who have believed, testimony should be taken among you when death approaches one of you at the time of bequest – that of two just men from among you or two others from outside if you are traveling through the land and the disaster of death should strike you.”, it is encouraged for the Muslims to make a will.
As for the hadiths which encourage the Muslims to make a will, firstly, there is a hadith narrated by Ibn Umar, which states “There is no right (fit) for a Muslim who has something to bequest left to the two nights but his will was written in his presence.”. There is another hadith by Ibn Majah which states that “The worst are those who do not have time to make a will”. These hadiths encourage the Muslims to make a will as no one would know when is their time of death.
Fundamentals and Conditions of Will
There are few conditions to be fulfilled for the will of Muslims to be valid. Firstly, the testator (Musi) who is the person who makes the will, must be a mukallaf which means the person must be a major who is of sound mind, and must be the owner who has the right to manage the property. This is stated in the Section 6, Selangor Muslim Wills Enactment 1999, Negeri Sembilan Muslim Wills Enactment 2004 and Malacca Muslim Wills Enactment 2005.
Secondly, at the time of the death of the testator, the will recipient (Musa Lahu) must be the one who is known, existed at that time and is capable to own the property stated in the will. The will recipient who is entitled to accept the will is general in nature, as long as the will is not made for unlawful purpose or activities.
Next, for the willed property (Musa Bihi), it can be either movable or immovable property, as long as it exists in the possession of the testator and transferable after the testator’s death, then the condition is fulfilled.
Lastly, in order to be a valid will, there must be sighah, which is referring to offer (Ijab) and acceptance (Qabul). Sighah can be done either in writing, through verbal or by a gesture. The acceptance of a will can only be done validly after the death of the testator. If it is accepted before the death of the testator, the acceptance is not valid. If the will is not accepted or rejected when the will recipient dies after the testator died, then the decision of whether to accept or to reject the will is depending on the heirs of the will recipients. The recipient cannot change his mind anymore once he has accepted or rejected the will. However, if the will is for a general party, it is not necessary to have an acceptance of the will. Any terms can be included in the will by the testator as long as they are complied with the Islamic Law.
Allowable Property Portion to Will
In Islamic law, other than the person who will benefit from the two-third of the property, the testator may bequeath one-third of his or her property at the time of his or her death after deducting all the funeral expenses and settling all the outstanding debts to anyone he wishes. This is based on Surah al-Nisaa 4 verse 12 which states that “For you shall be a half of what your wives leave, if they have no children; but if they have children, then for you shall be a fourth of what they leave, after paying off any bequest they may have made or any debt they may have incurred. And for them it shall be a fourth of what you leave, if you have no children; but if you have children, then for them shall be an eighth of what you leave, after paying off any bequest you may have made or any debt you may have incurred. If a man or woman is inherited by siblings and has a brother or a sister, then each of them shall receive a sixth; but if they are more than that, then they shall share in one third, after paying off any bequest he may have made or any debt he may have incurred without prejudice. This is an enjoinment from Allah, and Allah is all-knowing, all-forbearing.”
According to the hadith of the Prophet (peace and blessings be upon him) where Sa?ad bin Abi Waqqas said: “The Messenger has come to see me while I was in Mecca. I said, O Allah?s Apostle! I have much property and no heir except my single daughter. Shall I give two-thirds of my property in charity?” He said, “No.” I said, “Half of it?” He said, “No.” I said, “One-third of it?” He said, “You may do so though 1/3 is also too much, for it is better for you to leave your off-spring wealthy than to leave them poor, asking others for help.” Therefore, if the portion to the will is more than one third, the will is invalid unless the heirs of the testator agreed with it. The will of more than one third will be valid if the heirs agree. According to the view of Imam Hanafi, which is different from the majority of scholars, a will of more than one third will also be valid in the case where the testator has no heir.
Regarding to the allowable property portion of will, some of the companions disagree with the portion of one-third, instead they agree with the portion of less than that which is based on few hadiths which stated that the amount of one-third is too much. This can be seen from the practices of companions Saiyidina Abu Bakr and Saiyidina Ali who only bequeathed one-fifth of their properties.
Cancellation of Wills
The will may be canceled in certain circumstances due to the testator, the will recipient or the bequeathed property. The first circumstance is due to the insanity of the testator, which resulted in the loss of rights. According to the Imam Hanafi, regardless the insanity of the testator continues until he dies or not, a will is not a valid will. However, according to the opinion from the majority, a will is valid regardless of whether the testator insane until he dies or not, as the will was made earlier when the testator was in sound mind.
The cancellation may be occurred when the testator becomes an apostate. According to the opinion of Imam Syafie and Hanafi which is same as the opinion of Imam Maliki, the will of the testator is invalid when he becomes an apostate. Unlike Imam Syafie, Hanafi and Maliki, Imam Hambali is of the opinion that it is still a valid will.
A will will also be void when the condition stated in his will is not completed. Furthermore, the testator has the rights and privileges to withdraw his will before he or she dies. The cancellation of a will may also occur due to the rejection of the will recipient after the death of the testator. In addition, according to the views of the four Sunni, in the case where the recipient dies before the testator dies, the will is void. Lastly, in the case where the beneficiary murders the testator, according to the view of Imam Hanafi and Hambali, a will to a murderer is void regardless of whether the murder happens before or after the will is made. However, according to the Imam Syafie, Maliki, and Shia Imamiyyah were in the opposite view which said that the will is not void.that the testator opined that the will is not void despite the murder was intentional or intended to expedite the death of the testator so that he will receive an inheritance of the property immediately. This view of Hanafi and Hambali was adopted in the will legislation of the states of Selangor, Malacca and Negeri Sembilan.
Issues Relating to Wills
The first issue arising from the issue relating to wills is whether a will makes for an unborn child is valid. According to the scholars, the will make for a baby who is still in the mother’s wombis is valid.
Secondly, on the issue of recipient dies before accepting or rejecting the will or dies after the death of the testator, then the heirs of the will recipient will have the right to choose to accept or to reject the will. On the other side, Imam Hanafi was of the view that without the need of any statement of consent to accept, the right to accept or reject is transferred automatically to the heirs of the recipient.
Laws in Will-Making
The rulings of wills which are applicable are depending on the conditions of the circumstances. As in the view of the four Sunni sects, a wealthy person, parents and next of kin who are non-beneficiaries are not entitled to a will.
It is mandatory for Muslims to make a will if it is a religious obligation to be fulfilled and it is believed that the property will be lost if a will is not made for the property. It is recommended for a Muslim to make a will if the will is made for someone in need. On the other hands, it is haram to make a will for a prohibited purpose.