The Book Of ( Wasiyah ) Will

Will is of two kinds:

(A) Will for the transfer of property to a certain person or a cause after one's death.

(B) A task will in which one asks that certain things to be done for him, like things related to his body or property, like to be buried in a certain place at a certain time or that a certain amount of money be paid to fast or pray for him, or that a certain piece of property made an endowed property etc. If he specifies the executor and asks him for the task such person is appointed to carry on the task, but if he does not specify the executor and there is no indication to specify the executor, the high authority in Shari'a would be the executor of such will.

Rule (984) A task will does not require acceptance, regardless, one has appointed an executor of the will or not. In the will to transfer ownership, however, a will which says that this property will go to 'A' after I die, according to well known view it requires acceptance of 'A' but apparently it is not required.

Rule (985) When one finds that death is approaching him he must make a will and let people witness it that his liabilities such as religious taxes, worship acts missed or due on him and his debts to people must all be paid. The obligations which do not have time limitations become of limited time when a person is not confident of being able to fulfill them if further delayed like the obligation of making up for the prayers or fasting missed in time or paying-off expiations or vows etc., and other such deeds, in such case, it is necessary to fulfill them. It is necessary to make a will and make it public according to a strong reason unless one knows that the heirs or others would do on his behalf. Apparently, it is not necessary to pay off immediately, other's property with him in the form of safe-deposits, borrowed properties or profit-sharing properties etc., unless one is afraid that his heirs may not pay them off. It is necessary to make a will about it and make it public and arrange for witness to the will if paying would depend on it, otherwise, it is not necessary. The same rule applies to loans if the creditor is not demanding, otherwise, it is necessary to pay-off quickly even if there is no fear of dying.

Rule (986) In order to make a will effective to express it by words explicitly or implicitly or by means of deeds or writing or hinting, regardless, one still has the choice to select anyone of such means of expression or not even if a written will with one's own writing and signature which would indicate one's intention to be executed the will after his death. If one is asked whether he has made a will and he replies, 'no' and there is testimony that he has made a will the testimony is accepted not one's own report. However, if the 'No' is intended to be a cancellation of the will such change of mind is valid. The same rule applies if the answer is, 'Yes' and the testimony is against it if 'Yes' is intended to create a will such intention is valid and the will is effective.

Rule (987) According to the well-known view if the case of a will which transfers ownership of some parts of the legacy if the executor refuses to accept the will it causes such will to become void if it comes after testator's death and the will was not accepted before but this is not free from objection if it was accepted before refusal and after one's death or during one's life time, such refusal has no effect, the same is the case with refusal during the testator's life time.

Rule (988) If a will is made to transfer two things to a party who accepts one and refuses the other, the will is effective for what is accepted and void for what is refused with objection and the same rule applies if there is only one thing of which some is accepted and some parts are refused.

Rule (989) It is not lawful for the heirs to use the property to be transferred according to the will to someone before his accepting or refusing and the heirs cannot force him to decide immediately.

Rule (990) If the executor dies before accepting or refusing the will his heirs replace him who decide to accept or refuse if the testator does not change his mind regardless, such death takes place before or after the death of the testator.

Rule: (991) Apparently, the heir gets the bequest from his own legator if he dies after the death of the testator, first the debts are excluded from the legacy and his bequest. The wife does not inherit from the land but she does inherit from the value of land if it is palm trees or buildings but if one's legator dies before the testator, apparently, the heirs get the bequest from the testator himself, thus, is not dealt with like a legacy of one's legator in both cases the heirs are those of the person in whose favor the will is made not those after the death of the testator. If the heir too dies before the death of the testator; transfer of bequest to his heir also is not free from objection, although transferability is more clear.

Rule (992) If one makes a will to someone asking him to transfer some of his legacy to another person can the above rule of the transferability of the bequest to heirs apply in this case too, if he dies during the life time of the testator it is objectionable; applicability is more clear.

Rule (993) The testator must have the following qualification:-

(A) He must be mature, the will of a child is not effective before he is ten years old and has understanding and his will is in virtuous matters in favor of his relatives, for other than relatives is objectionable.

(B) He must be of sound reason, the will of an insane and unconscious and drunk during such condition is not valid, if one makes a will when he is mentally sound then becomes insane, drunk or unconscious, his will does not become void taking intelligence as a condition also is objectionable but the precautionary rule should not be ignored

(C) The testator must be free from compulsion; the will of a person forced is not valid.

(D) Freedom from slavery.

(E) He must not be a fool, a person of unstable mind who is not able to distinguish what is for his interests and what is not.

(F) The testator must not have taken his own life if he makes a will after doing something to himself which causes his death, his will is not valid if it is about his property, but if it is about certain matters of his funeral etc., it is valid. His will is also valid if he has done to himself lethal things by mistake or not intending it to be lethal or as obedience to Allah, like fighting for the cause of God. The same rule applies if he recovers and then makes a will, apparently, the will is valid so if he makes a will after doing some lethal things to himself then recovers and then dies.

Rule (994) If one makes a will before doing something lethal to himself and then dies because of such thing his will is valid even if the lethal act takes place during making the will intending it (the lethal act ) to take place soon after.

Rule (995) Father and grandfather's making will regarding the guardian for a minor is valid if one of them (father or grand-father) does not exist but with the other's existence it is not valid.

Rule (996) It is not permissible for the high authority in Sharia to make a will appointing thereby a guardian after his death for a child, after his death the matter goes into the hands of the next high authority in Shari'a.

Rule (997) If one makes a will of transferring some property to a child of his relatives or another child, but lets it to be managed by someone other than father, grand-father or high authority in Shari'a, such will is not valid, in fact, the task goes to either, father or grand-father if they do not exist the high authority in Shari'a is in charge of the matter. However, if he wills that the bequest stays with executor of his will until the child is mature and then he is given possession, such will is valid. The same rule applies, if he wills to spend for a child without giving possession to him.

Rule (998) It is permissible for the father and grand-father to will and appoint thereby one or more people as guardians and custodians of children, as well as supervisor over the custodian who supervises and guides as it will be discussed in details later.

Rule (999) If the testator says to someone "you are the guardian and custodian of my minor children and my grand-children, and does not mention any limitation it is permissible for such guardian to deal with all of the affairs of the children like looking after them, educating them, protecting their properties, spending for them, paying off their debts and their liabilities etc.

Rule (1000) If the testator sets certain limitation on the guardianship, the guardian must not exceed such limits and the rest of their affairs require supervision of the high authority in Shari'a.