Wasiyyah (will)

Introduction
❖ An iqrar of a person made during his lifetime
with respect to his property or benefit thereof.
❖ For the purpose of charity or for any other
purpose permissible by Islamic law, after his
death.
❖ Section 2(1), Muslim Wills (Selangor)
Enactment 2004 and Muslim Wills (Malacca)

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❖ A wasiyyah involves an offer from the testator to make a
wasiyyah and is completed with the acceptance of the
beneficiary after the death of testator.
❖ Writing or orally.
❖ Recommended (Sunnah), the wasiyyah to be witness by
two just male witness. (Al-Maidah (5): 106)
❖ Section 3 o the Muslim Wills (Selangor) Enactment 1999.

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The verse of bequest (Wasiyyah)
❖ Surah Al Baqarah (2): 180
❖ Prescribed for you when death approaches [any] one of
you if he leaves wealth [is that he should make] a bequest
for the parents and near relatives according to what is
acceptable - a duty upon the righteous.
❖ Surah Al Baqarah (2): 240
❖ And those who are taken in death among you and leave
wives behind - for their wives is a bequest: maintenance
for one year without turning [them] out. But if they leave
[of their own accord], then there is no blame upon you for
what they do with themselves in an acceptable way. And
Allah is Exalted in Might and Wise.
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Elements

A) the B) the
testator; beneficiary;

C) the D) the aqad

subject – offer and
matter; acceptance;

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Testator
❖ Mentally capable and has attained the age of 18
years. (Section 2 of the Age of Majority Act
1971.
❖ People who is not competent to be testator
according to Islamic Law, his will is invalid
except with the consent and authorisation of
the Court. (Section 6 of the Muslim Wills
(Selangor) Enactment 1999.)
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❖ Definition of unsound mind (Section 2 of the
Muslim Wills (Selangor) enactment 1999.
❖ Must be “aqil”, a person who possesses the
capability to think properly, correctly and
rationally.

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❖ Beneficiary
❖ Must be alive and in existence at the time of
death of the testator.
❖ If dies before the testator then the wasiyyah
made in his favour becomes null and void.
❖ If the muslim testator and beneficiary die
together, the rule is nobody survives other.
❖ A child in womb, Muslim jurists agree that
it must be conceived
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❖ Subject matter
❖ Must be capable of being inherited or be the
subject of a valid contract.
❖ Capable of being valued and transfer.
❖ Must not be contrary to the precept of
Shari’ah. (Pengarah Jabatan Hal Ehwal
Agama Islam v Faridah Chin

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Limitations to
Wasiyyah
No bequest to be made in favour of an heir
❖ The Prophet is reported to have said in the year of the
conquest of Mecca in 8 A.H (630 A.D)
❖ No bequest to a successor is valid, nor shall a believer
be slain for the (blood of) and unbeliever.
❖ A narration by Abu Imama in these words:
❖ I heard the prophet say: Allah has already give to
each entitled relative his proper entitlement.
Therefore, no bequest in favour of a legal heir.

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❖ Siti Binti Yatim v Mohamed Nor Bin Bujali (1928) 6
FMLSR 135
❖ Amanullah bin Haji Ali Hassan v Hajjah Jamilah (1975) 1
MLJ 30
❖ Zalani Bongsu bin dato’ haji Othman v Bahrom Dato
Othman & Zaitoon Dato Othman, 2 Ors (as interveners)
(1993) 4 CLJ 37
❖ In Re The Will of M Mohamed Haniffa, Deceased; Abdul
Jabbar v M Mohamed Abubacker (1940)) MLJ 286
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The One-Third Rule
✢ A muslim can dispose of 1/3 of the property by
wasiyyah
✢ The wasiyyah is only valid to the maximum of
1/3
✢ According to Shafi’e jurists, 1/3 is to be assessed
from the value of the net estate at the time of
the testator’s death.

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❖ Hadith
❖ The Prophet came to visit me in my
sickness. I was then at Mecca and did not
like to die at ap place from where I had
migrated…….

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❖ Shaikh Abdul Latif v Shaikh Elias Bux (1915) 1
FMSLR 104
❖ Amanullah Haji Ali Hasan v Jamilah Sheikh
Madar (1974) 3 LNS 2
❖ Abdul Rahim v Abdul Hameed & Anor (1983)
CLJ 441 (Rep)

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Time for Calculation of the Bequeathable
Third
❖ Shafi’I and Hanbali jurisdiction hold rigidly to
the principle that the bequethable third
❖ The value of the net estate at the time of the
testator’s death.

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Significant and Effect of Consent
❖ Consent can only be effective if given after the
testator’s death.
❖ A testator may specify the share of legal heirs,
but must not be more then 1/3.
❖ No consent is needed form a legal heir if a non
legal heir received a bequest less then 1/3.
❖ Re Estate of Siti bte Naydeen (1985) 1 MLJ
24.
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Subject Matter of a will
❖ Must be capable of being inherited or must be
subject of a valid contract during the testator’s
life.
❖ Specific bequest
❖ General Bequest
❖ Uncertainty of subject matter

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Bequest in Favour of Places
❖ Must have some lawful object.
❖ Without specifying the object, it shall be
applied for general charitable purposes. (waqaf)
❖ Shall not exceed one-third in value of testator’s
estate.

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Circumstances in which a will becomes
invalid
✢ The testator was a person of unsound mind.
✢ The beficiaries dies before the testator
✢ The specific subject of the will is destroy before
the death of the testator.
✢ The testator revokes the will.
✢ The beneficiaries killed the testator.

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Revocation of a Will
❖ A will becomes void if the testator revokes the
will. (Section 15(1)(a)(b) of Selangor Wills
Enactment 1990)
❖ May revoke wholly or partly by express or
implied. (Section 15(1)(c) of Selangor Wills
Enactment 1990)
❖ When testator does any act or creates
circumstances which can be proved by qarinah
or urf.
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Acceptance and Rejection of a Will
❖ Part V, Section 17 to Section 21 of the Selangor Wills
Enactment 1999.
❖ Only done after the death of the testator.
❖ Acceptance through express or implied acceptance by the
beneficiary after the testator’s death. (Section 17 of the
Selangor Wills Enactment 1999)
❖ If the beneficiaries dies without acceptance and rejection,
the will pasess to the beneficiaries heir. (Section 17 (6) of
the Selangor Wills Enactment 1999)
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