Faraidh

Sec. 2, Muslim Wills (Selangor) Enactment 1999: Wasiyyah (Will) is an ‘iqrar of a person made
during his lifetime with respect to his property.
General rule: The property of a Muslim is automatically distributed under faraidh upon his
death, however, as the testator, he may dispose 1/3 of his property to non-quranic heirs.
- Disposal of more than 1/3 of his property is subject to the consent of his quranic heirs
to be given after his death.
The portion of property that can be bequeathed by a testator under Islamic law is only 1/3 of
the total assets available at the time of death, after the subtraction of the amount used for
the testator’s funeral expenses and settlement of debts (if any).
- Hadith al-Bukhari: The Messenger said to Sa’ad bin Abi Waqqas that he may give only
1/3 of his property to charity as it is better to leave his offspring wealthy than to leave
them asking for the help of others.

- Sec. 26: A bequest made to a non-quranic heir within the limit of 1/3 of the testator’s
net estate shall be given effect to without the consent of his quranic heirs.
- Shaik Abdul Latif v Shaik Elias Bux: A testator has the power to dispose by will of no
more than 1/3 of the property belonging to him at the time of death. The residue must
descend in fixed portions to his quranic heirs.
- Amanullah v Jamilah: A testamentary disposition purporting to dispose more than 1/3
of the testator’s estate is invalid.
Disposition of estate:
Amanullah v Jamilah: The testator’s disposition is invalid if
- It purports to dispose more than 1/3 of his estate to a non-quranic heir
- It purports to benefit any of the quranic heirs above his share prescribed by faraidh
A testator cannot make a will in favour of his quranic heirs (spouse, children, and parents).
- Quranic heirs are entitled to the testator’s property in accordance with faraidh.
A testator can only make a will disposing 1/3 of his property in favour of his non-quranic heirs.
- E.g: Adopted children, foster parents, waqaf (charity), issues of testator’s children,
non-Muslim family members, close friends
Siti Yatim v Mohamed Nor Bujali: The will of a Muslim attempting to prefer an heir by giving
him a bigger share of the estate than he is entitled to under Islamic law is invalid without the
consent of the testator’s quranic heirs.
Amanullah v Jamilah: Where the plaintiff claimed to be entitled to 1/3 of all of his father’s
property under the will, the will which was made during the time when the testator was ill
and in a coma is thus, invalid. Even if it was validly made, it would be found void as it purported
to dispose of more than 1/3 of the testator’s estate to his heirs.
Consent of quranic heirs:
Consent is necessary where the testator purports to:
- Dispose more than 1/3 of his estate to a non-quranic heir
- Benefit any of the quranic heirs above his share prescribed by faraidh
If consent is not given, only 1/3 of the property bequeathed through the will is valid, and the
remaining will be inherited by the quranic heirs.
- This is to help preserve the welfare of the quranic heirs who are also entitled to the
inheritance as the testator, before his death, may have reduced their share until their
portion of his property is adversely affected.

- Consent is necessary even if the heir renounces (refuses) the succession.

- Consent must be given after the testator’s death
- If consent is given before the testator’s death, such consent will not be valid.
- The burden is on the beneficiary (non-quranic heir/quranic heir) to show that all the
quranic heirs have consented to the excess in the share of the testator’s property after
his death
- In order to inherit the property, the beneficiary must not predecease the testator
Re Estate Siti Naydeen: The defendant alleged that Mansor, the deceased father of the
plaintiff, had consented to the distribution of the testatrix’s estate wholly to the defendant’s
mother, in accordance with the will. On the issue if the consent had in fact been given by
Mansor to the distribution in accordance with the testatrix’s wishes, it was found that at the
discussion in 1965, Mansor did not specifically give his consent, he merely ‘did not object to
the wishes of the testatrix’.
- If a consent had been truly made in the circumstances of the case, it was one which
must be specifically made and not gathered by implication of Mansor’s non-objection
to the wishes of the testatrix. A written consent could also have been obtained by the
defendant.
Zalani Bongsu v Bahrom & Zaitoon and 2 Ors: Where the testator had directed that the
balance of his immovable and movable estate be divided equally between his wife, 3 sons and
daughter, the will was held to be invalid as he had bequeathed more than 1/3 of his property,
especially when there was evidence that his heirs did not consent to the equal division of
shares.
Execution of the will:
Sec. 3: Will may be made orally, in writing or by an intelligible gesture
- Sec. 3(2): A will made orally or by a gesture must be made before two witnesses
competent to be accepted as witnesses under Islamic law (male, sound mind etc)
- The use of any words or signs may be used as long as they show a clear intention on
the part of the testator to bequeath property to a particular beneficiary
A testator’s signature must be supported by a document written or signed by the testator, or
an oral testimony of testator.

- If the testator chooses to not sign the will, it would not be invalid provided that there
are two competent witnesses present during its execution.

Sec. 15: Revocation

- Sec. 15(1): A will may be revoked expressly, impliedly, or by a subsequent will made
which overrides the former
- Sec. 15(2): A will is deemed to be revoked where
- The testator creates circumstances which prove that he revoked his will, or
- Where all his bequeathed property has been exhausted
Sec. 17: Acceptance and rejection of will
- Sec. 17(1): A will is enforceable upon an express or implied acceptance by the
beneficiary after the testator’s death
- Qabul (beneficiary’s acceptance): If acceptance or rejection is made before the
death of the testator, it will not be valid.
- Sec. 17(6): If the beneficiary dies without having accepted or rejected the will, the
option shall be passed to the beneficiary’s heirs.
Sec. 18: Time of acceptance or rejection of a will
- Sec. 18(1): Beneficiary must accept or reject the will within 30 days of discovering the
testator’s death and the existence of the will.
Factors invalidating a will:
Sec. 6: Competency of the testator
- Sec. 6(1): The testator must be 18, of sound mind, acting on his own free will and
without coercion, and is not prohibited from administering his own property
- Sec. 6(2): A person not competent to be a testator will cause his will to be invalid.
- Sec. 6(3): Where a testator is ill, he must be of sound mind, in good memory and
understanding at the time of the execution of the will
- Amanullah v Jamilah: Where evidence proved that the testator was fully
unconscious when admitted to the hospital, he could not have made a will.
- Sec. 6(4): Where a testator is in marad al-maut (a state of near death), he bequest
shall not exceed 1/3 of his property, and if it does, the excess shall not be given effect
unless with the consent of all his quranic heirs
Sec. 12: A will shall be invalidated if
- a) The testator becomes a person of unsound mind and dies in that state
- b) The beneficiary predeceased the testator
- c) The subject of the testator’s will is destroyed before his death
- d) The testator revokes the will