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Al Wasiyya - Drafting the Islamic Will

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There are only 2 certainties in life: death and Nabi ’Isa’s (AS) second coming. While agreement amongst Muslims exist for the one, great confusion reigns about the other, judging by the majority of Muslims who die without leaving behind a valid Will. The reasons for this sad state of affairs are unclear, but the tragic repercussions for those left behind are all too familiar. This article is an attempt at rectifying this needless transgression of the Shariah.
We are fully aware of the complexities, both religious and legal, in drafting such an important document, and would strongly urge all Muslims to approach a legal professional well-acquainted with the Shariah requirements to complete this task. To encourage Muslims to undertake the move, we have compiled a list of legal professionals, along with an approximate cost structure, for them to choose from. On the other hand, we realize that, for various reasons, many people will not have access to a legal professional. For them we have published a pro-forma Will to be utilized in emergency situations. While pro-forma Wills are fraught with potential problems, we believe that those problems are outweighed by the Shariah need to have a Will, whatever its shortcomings. To assist the do-it-yourselvers, we have compiled a check-list of pitfalls to avoid when they embark on this task. However, we must emphasise that we take no responsibility for any legal problems arising out of the utilization of the pro-forma Will.

 

LEGAL REQUIREMENTS FOR DRAFTING A WILL

1. Will must be written down, i.e. oral declarations not acceptable.
2. Testator (person making the Will) must be of sound mind at the time.
3. Each page of the Will must be signed by the Testator in the presence of 2/more witnesses.
4. Witnesses must sign in the presence of the Testator and of each other.
5. If Testator signs by making a mark, it must be ratified by a Commissioner of Oaths.
6. Heirs or Executor of a Will may not sign as witnesses.
7. If nett worth of estate exceeds R3,5million, estate duty of 20% on balance becomes due and payable.
8. Donation tax of 20% of value of property is levied by the Receiver if house is transferred to spouse during Testator’s lifetime.

 

SHARIAH REQUIREMENTS FOR DRAFTING OF A WILL
1. Hadith
“It is not permissible for any Muslim who has something to will, to stay for 2 nights without having his last Will and testament written and kept ready with him.”  (Bukhari)

2. The Holy Quran (Surah 4, Verse 11) :
Allah (thus) directs you as regards your Children's (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half.

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For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased Left brothers (or sisters) the mother has a sixth.
3. Testator cannot bequeath (donate to non-heirs) more than a third of his/her estate.
4. Testator cannot make a bequest in favor of a legal heir.
5. Wasiyya is executed after payment of all debt and funeral expenses.
6. Bequests may include institutions, illegitimate children, etc.

CONSEQUENCES OF NO VALID WILL
1. South African Muslims who die intestate (without a valid Will) will have assets wound up in accordance with the Intestate Succession Act.
2. Assets will not be distributed according to the Shariah.
3. Executor of the estate will be appointed by the Master/State.
4. Long delay in the execution/disposal of assets.
5. Extra costs incurred.

HOW TO PROCEED IN DRAFTING AN ISLAMIC WILL
A. Non-emergency Situations
1.  Choose a lawyer
a)  Consult list provided hereunder
b)  If your lawyer is well-acquainted with Shariah requirements, ask for references and costs.
c)  Legal tariff structure
- Most lawyers charge per hour
- Get an approximate total cost
- Some lawyers charge global figure
d)  If your lawyer is not well acquainted with Shariah requirements, remember that you then received a legally valid, but not necessarily a Shariah-compliant Will.

B.  Emergency Situations
Before proceeding to complete the pro-forma Will, read the checklist carefully

CHECKLIST OF COMMON PITFALLS TO AVOID
1. Two witnesses must be present when Testator signs, in turn they must sign in his/her and each other’s presence.
2. Testator must sign each page
3. Testator cannot bequest more than a third of his estate.
4. If married in community of property, Testator’s Will can only deal with half of their combined assets.
5. If net worth of estate is more than R3,5 million, must consult an estate planner, otherwise large estate duty payable.
6. Testator must choose his/her own Executor, not cede right to bank/institution.
7. If minor beneficiaries, Trust must be created in the Will.


12:34 AM 2009/08/27

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