This article is a very brief overview of the
traditional Sunni Islamic law pertaining to the Islamic will. The aim of
this article is to arouse awareness amongst Muslims particularly those
living in the West regarding this important aspect of Islamic law. It
should be stressed that when writing a will one should consult an
Islamic scholar/legal expert to ensure that the will complies with
Islamic law as well as the law of the country of residence.
When a Muslim dies there are four duties which need to be performed.
- payment of funeral expenses
- payment of his/her debts
- execution his/her will
- distribution of the remaining estate amongst the heirs according
The Islamic will is called al-wasiyya. a will
is a transaction which comes into operation after the testator’s
death. The will is executed after payment of funeral expenses and any
outstanding debts. The one who makes a will (wasiyya) is called a
testator (al-musi). the one on whose behalf a will is made is
generally referred to as a legatee (al-musa lahu). Technically
speaking the term "testatee" is perhaps a more accurate
translation of al-musa lahu.
The importance of the Islamic will
The importance of the Islamic will (wasiyya)
is clear from the following two hadith:
"It is the duty of a Muslim who has anything
to bequest not to let two nights pass without writing a will about
it." (Sahih al-Bukhari)
"A man may do good deeds for seventy years but
if he acts unjustly when he leaves his last testament, the wickedness
of his deed will be sealed upon him, and he will enter the Fire. If,
(on the other hand), a man acts wickedly for seventy years but is just
in his last will and testament, the goodness of his deed will be
sealed upon him, and he will enter the Garden." (Ahmad and Ibn
the will gives the testator an opportunity to help
someone (e.g. a relative need such as an orphaned grandchild or a
Christian widow) who is not entitled to inherit from him. The will can
be used to clarify the nature of joint accounts, those living in
commensality, appointment of guardian for one’s children and so on. In
countries where the intestate succession law is different from Islamic
law it becomes absolutely necessary to write a will.
The Will (Al-wasiyya)
The Islamic will includes both bequests and legacies,
instructions and admonishments, and assignments of rights.
no specific wording is necessary for making a will.
In Islamic law the will (wasiyya) can be oral or written, and the
intention of the testator must be clear that the wasiyya is to be
executed after his death. any expression which signifies the intention
of the testator is sufficient for the purpose of constituting a bequest.
there should be two witnesses to the declaration of
the wasiyya. A written wasiyya where there are no
witnesses to an oral declaration is valid if it written in the known
handwriting/signature of the testator according to Maliki and Hanbali fiqh.
the wasiyya is executed after payment of debts
and funeral expenses. the majority view is that debts to Allah (SWT)
such as zakh, obligatory expiation etc. should be paid whether mentioned
in the will or not. However, there is difference of opinion on this
matter amongst the Muslim jurists.
The Testator (Al-musi)
every adult Muslim with reasoning ability has the
legal capacity to make a will. An adult for this purpose is someone who
has reached puberty. Evidence of puberty is menstruation in girls and
night pollution (wet dreams) in boys. In the absence of evidence,
puberty is presumed at the completion of the age of fifteen years. The
Maliki and Hanbali fiqh also consider the will of a discerning (tamyiz)
child as valid.
Under English Law you must be at least 18 years of
age to make a valid will (similarly in most of the United States of
America) unless you are a military personnel in which case you may make
a valid will at the age of 17.
the testator must have the legal capacity to dispose
of whatever he bequests in his will. When making a will the testator
must be of sane mind, he must not be under any compulsion and he must
understand the nature and effect of his testamentary act. The testator
must of course own whatever he bequests.
the testator has the right to revoke his will by a
subsequent will, actually or by implication.
In traditional Sunni Islamic law the power of the
testator is limited in two ways:
- firstly, he cannot bequest more than 1/3 of his net estate unless
the other heirs consent to the bequest or there are no legal heirs
at all or the only legal heir is the spouse who gets his/her legal
share and the residue can be bequeathed.
Narrated Sa‘d ibn Abi Waqqas (RA): "I was stricken by an
ailment that led me to the verge of death. The Prophet came to pay me
a visit. 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 one-third is also too
much, for it is better for you to leave your offspring wealthy than to
leave them poor, asking others for help..." (Sahih al-Bukhari,
Sahah Muslim, Muwatta, Tirmidhi, Abu Dawud and Ibn Majah.)
- secondly, the testator cannot make a bequest in favour
of a legal heir under traditional Sunni Muslim law. However, some
Islamic countries do allow a bequest in favour of a legal heir
providing the bequest does not exceed the bequeathable one-third.
Legal heir in this context is one who is a legal
heir at the time of death of the testator.
Narrated Abu Hurayrah (RA): Allah’s Prophet
(SAWS) said, "Allah has appointed for everyone who has a right
what is due to him, and no bequest must be made to an heir.
(Abu Dawud). Similar hadith
narrated by Abu Umamah (RA) and reported by Ibn Majah, Ahmad and
The Legatee (Al-musa lahu)
generally speaking, for a bequest to be valid, a
legatee must be in existence at the time of death of the testator except
in the case of a general and continuing legatee such as the poor,
the legatee must be capable of owning the bequest.
any bequest made in favour of any legal heir already entitled to a share
is invalid under traditional Sunni Muslim law unless consented to by
other legal heirs. an acknowledgement of debt in favour of a legal heir
acceptance or rejection of a bequest by the legatee
is only relevant after the death of the testator and not before.
generally speaking once a legatee has accepted or rejected a bequest he
cannot change his mind subsequently.
if the legatee dies without accepting or rejecting
the bequest, the bequest becomes part of the legatee’s estate
according to the Hanafi fiqh because non-rejection is regarded as
acceptance. According to the other three main Sunni madhahib, the
right to accept or reject the bequest passes onto the heirs of the
there is difference of opinion as to the time at
which ownership of a bequest is transferred from the testator (or his
heirs) to the legatee. According to the Hanafi and Shafii fiqh
the transfer of ownership is at the time of death of the testator,
according to the Maliki and Hanbali fiqh the transfer of
ownership is at the time of accepting the bequest.
all the Sunni madhahib agree that if the
legatee dies before the testator, the bequest is invalid since a bequest
can only be accepted after the death of the testator.
if there is uncertainty as to whether or not the
legatee survived the testator, such as a missing legatee, the bequest is
invalid because the legatee must be alive at the time of death of the
testator for the will to be valid.
if the testator and legatee die together, such as in
an air crash, and it is not certain who died first, the bequest is
invalid according to the Hanafi, Maliki and Shafii fiqh. But
according to the Hanbali fiqh, the bequest devolves upon the
legatee’s heirs who may accept or reject it.
Executor of the will (Al-wasi Al- mukhtar)
the executor (al-wasi) of the will is the
manager of the estate appointed by the testator. the executor has to
carry out the wishes of the testator according to Islamic law, to watch
the interests of the children and of the estate. The authority of the
executor should be specified. Hanafi and Maliki fiqh state that
the executor should be trustworthy and truthful; the Shafii fiqh
state that the executor must be just. the Hanafi fiqh considers
the appointment of a non-Muslim executor to be valid. the testator may
appoint more than one executor, male or female. the testator should
state if each executor can act independently of the other executor(s).
if one starts acting as an executor, one will be
regarded as having accepted the appointment, both in Islamic and in
Dr. Abid Hussain