5.

0 Issues of Wasiyyah In Malaysia

5.1 Oral Wasiyyah

Wasiyyah can be made through written or oral, whichever suitable to the condition
that the testator is in at that time. In the “Textbook on Muslim Law”, Rajesh Kumar Singh
explains specific formalities are not needed in the making of a wasiyyah as Muslim can make
a will either in oral or written form. A will made using signs for sick and disabled person is
considered valid in Islam. However, oral form by itself is not enough and the burden of proof
is very heavy that it must be proved with utmost precision including the circumstances of
time and place (Hussain and Sulaiman, 2013, as cited in Rajesh Kumar Singh, 2011). This
matter also did be mentioned in the provision of section 3 of the Muslim Wills (Selangor)
Enactment 1999.

As an example, in case of Nik Salma Zaidah binti Haji Wan Zaid lwn Nik Hasnah
binti Nik Din dan Seorang Lagi [2002] XV JH 143, the defendant claims that their adoptive
father said to both of them that he wanted to build a house and gave it to them. And thus, the
adoptive father provided the allocation for the construction of the house with a condition that
the house was constructed after their foster father had passed away. Since there was no
written document, the issue was whether the words spoken by their foster father was a valid
wasiyyah or not? Mahkamah Rayuan Syariah Kota Bharu Kelantan’s verdict is that the words
spoken can be accepted as the wasiyyah through kinayyah (kiasan). Thus, the defendant will
be regarded as accepting the wasiyyah if they continue the house construction and reside
there (Muda, 2008)

The validity of oral wasiyyah is not easy to be proven. This is because oral wasiyyah
without sufficient evidence can be exploited by certain party for their own benefit. Not only
that, other beneficiary can blatantly claim that the testator named them on the asset without
giving any evidence. Another case with a widow whom in disagreement with her father-in-
law that claim that his son named him as the nominee for KWSP. Thus, the wife and the
children have no right on the savings and it is a wasiyyah. (Mahkamah Syariah Negeri
Melaka, n.d.) However, this is a mistake on father-in-law part as KWSP is not a wasiyyah
and he is obligated to divide the savings according to faraid. Thus, the wife and children can
claim the savings from the father-in-law. If the father-in-law continues to monopolize the
savings, it will be considered as a forbidden act and legal action can be charged on him.
 In order for an oral wasiyyah to be valid, it must be performed in front of at least two
witnesses that can be accepted as witnesses according to Hukum Syarak (Seksyen 3,
Enakmen Wasiat Orang Islam (Selangor) 1999). However, it is more recommended to use
written wasiyyah in order to evade disputes and arguments unless it is necessary to use oral
wasiyyah.

5.2 Wasiyyah Wajibah

Wasiyyah Wajibah has been used in several countries with their own reasons or
ijtihad as it suitable for certain places, following the ijtihad of the Islamic scholars such as
Egypt Act 1946 and it is followed by several countries. However there are some challenges to
face wasiyyah wajibah as it has differences based on Islamic scholars where some countries
accept it as an act or otherwise rejected it while both reasons is for taking care for
beneficiaries and heirs. In Malaysia, every state also has their own enactment that is differ to
another and there is some state that did not execute any enactment for wasiyyah wajibah.

Based on the article of ‘Fatwa Berhubung Wasiat Wajibah Dan Keseragaman

Peruntukannya Dalam Fatwa Negeri-Negeri Di Malaysia’ by Muhammad Fathullah Al Haq
Muhamad Asnii & Jasni Sulongii, they found out that wasiyyah wajibah was accepted and
practiced in Malaysia through the drafting of the Muslim Will and the official fatwas.
However, the practice and fatwa in Malaysia only recognizes the compulsory beneficiaries of
the legitimate or sahih heirs, and rejects the dhu arham heirs by fulfilling the objective
(maqsad) to ensure the welfare of the heirs will continue to be preserved.

JAKIM has played a significant role in wasiyyah wajibah issues, which have led to
official decisions at the National level as the mandatory will is a national issue which is
agreed upon by all states when it comes to national issues. The method of ‘maslahah
mursalah’ and "in the event of two damages, then the least damage will be the priority" are
used to provide for the benefit of some of the immediate beneficiaries who are barred from
the estate. They also referred to the ultimate qawl in the Mazhab Shafie school to release a
hukm.

There are disadvantages when there are disputes between states when it comes to
wasiyyah wajibah issues where there are states that provide specific enactments on wasiyyah
wajibah. There are states that issue different rulings than other states and some states do not
issue what is the fatwa for this issue so the conflicts occur in the administration of Islamic
law and cause confusion in society. In the event of unjust enrichment of law to the heirs in
particular and between the residents of one state and another, it does not meet the objective of
justice demanded in Islam. It is also incompatible with good governance.

However, the benefits of wasiyyah wajibah should be greater than their weaknesses.
Therefore, it will bring great goodness to the children who are protected from inheriting the
property and can prevent them from being harmed by two damages (orphan), orphaned and
protected from inheriting property. The standardization of the fatwa has given unity of view
and execution. This will enable the administration of the affairs of the will to be carried out
fairly and equitably, and to ensure that the economic and welfare resources of the Muslims
are prosperous. Hence, the issue of wasiyyah wajibah is acceptable due to the standardization
of nation’s fatwa of Malaysia, which is executed by JAKIM.

5.3 Limitations of The Legal System

The other issues that arise of wasiyyah in Malaysia were the limitations of the legal
system and the need to abide by sharia compliant principles. There are no clear
guidelines on the processes to follow to claim rights to Islamic inheritance.
Administration has not been able to produce one single complete system at present that can
handle the whole management and distribution process of Islamic inheritance. There are also
takes time and endure in spending lots of money before they are able to realize their rights to
estates. Therefore, this issue brings to another problems by all society based on the hardness
which is unawareness and do not want to know more about inheritance.

Based on the article Review on Issues and Challenges in Islamic Inheritance

Distribution in Malaysia by Noraini Noordina, Adibah Shuibb, Mohammad Said Zainol and
Mohamed Azam Mohamed Adil, they found out that time and cost as two main parameters to
be considered to ensure fluency throughout the processes at the respective institutions. Hence,
IT advancements were made to ease the problems of delay in the management of inheritance.
Now, to help produce the Faraid certificates, the Sharia courts also using the current e-Sharia
portal for society and public usage. It is also cheaper to process a claim at the Land Offices.
Small Estates cases can be easily settled at the Land Office for a fee as low as RM10 and as
high as 0.2% of the value of the assets value.
 Administration and distribution process can be modeled as a network, thus this issue
use the Network Flow Programming which can minimize the time and cost involved in the
Islamic inheritance administration and distribution process. The issue of cost, time and
institutional issue. Public must face about three to ten years to complete a claim process and
there were cases that prolonged to more than twenty years. Clients have also to endure the
financial burden during the time period and majority of clients have problems compiling
documents to complete the claim form. They are just confused; they do not know where to
start, how to proceed and where to go to process a claim to inheritance.

Therefore, the advantages of e-Faraid have helped to simplify the distribution process
at Land Offices and have some impact on lessening the process time. In addition, public
managers have also testified that e-Sharia has helped to reduce the number of backlogs and
improve time taken to complete a trial and reduce time to solve some backlog cases on
Islamic inheritance. Therefore, the results of the research found out that e-Faraid and e-
Sharia brings more convenient and can solves these problems and issue of inheritance.

References

Hussain, F., Sulaiman, D. P. S., (2013). “When I Die I Bequeath You ...”: Formalities as The
Legal Protection Against Forgery and Fraud In Wills In Malaysia, The 5th International
Conference on Financial Criminology (ICFC), Universiti Teknologi MARA (UITM),
Malaysia.

Muda, M. Z., (2008). Instrumen Hibah dan Wasiat: Analisis Hukum dan Aplikasi di
Malaysia, Universiti Kebangsaan Malaysia (UKM), Malaysia.

Mahkamah Syariah Negeri Melaka. (n.d.). Faraid, Retrieved 3 April 2020 from
https://www.mahsyariahmelaka.gov.my/index.php/en/help/faq/135-faraid

Noraini Noordina, A. S. (April 2012). REVIEW ON ISSUES AND CHALLENGES IN

ISLAMIC INHERITANCE DISTRIBUTION IN MALAYSIA. Research Paper , 1-
13.
Sulongii, M. F. (2016). FATWA ON WAJIBAH WILL AND UNIFORMITY OF
PROVISION IN THE MALAYSIAN. Al-Qanatir International Journal of Islamic
Studies, Vol 5 No 2.