Differences between Al-Wasiyyah and Common Law Will (Part 3)

Bismillāhi Rahmāni Rahīm 

You are welcome to today's class on inheritance law in Islām.

Date:   12th Jumādah Thānnī , 1441 A H /  5th February, 2020

Series 2:   Al-Farā’id (The Islamic Law of Inheritance): The Theories  

Lesson:   48

Topic:   Al-Waṣiyyah (Bequest) and Common Law Will Writing and Execution 

Sub-Topic:  The  Differences (Part 3)

In our last class, we enumerated some similarities between Al-Wasiyyah and the Common law Will. Today,  Inshā Allāh, we are looking at the differences between the two and what distinguished the former from the latter as the most appropriate method of writing will in term of content, application and appropriateness. In nutshell, some of the differences between the two are:

1.  Al-Wasiyyah was divinely promulgated by Allah ( See Q2: 180-182); hence, its uniformity while the common  law Will world over was a product of man’s discretion; hence its discrepancy from a county to the other.

2.  The maximum bequeathal a Muslim (Testator) can give out as testamentary disposition (Al-Wasiyyah) is thuluth (one-third) in order not to jeopardize the quotas of the legal heirs while in the provision of Common law, a testator can bequeath all his or her properties to whomever he or she wills.

3.  Under Islamic law, there is no Wasiyyah for any legal heirs because their shares have been appropriated by Allāh without any prejudice while ironically under common law, the testator can wills out his or her property to whomever he wishes either blood related such as spouses, children, parents or to non-relatives.

4.  As provisioned in Shariah, once Wasiyyah is certified valid by Shari‘ah Court, its content could never be challenged, rejected or changed by anyone including the legal heirs except where the irregularities are confirmed by the Court, while under the Common law provision, the content of the Will could be challenged by the deceased’s heirs or relatives at the Court of law. In such process, the Will might be declared null and void and subsequently all the beneficiaries rejected by the Court against the wish of the testator.

5.  In Islām, Al-Wasiyyah is not obligatory on a testator but discretional to compensate the non-heirs and others who would be denied the actual portion of deceased’s estate after his demise such as non-Muslim spouses and parents while under common law Will, everybody including the legal heirs could be the beneficiaries. This is so because the only means known to the proponents of common law in sharing the deceased’s estates is through the Will testament he or she might have written before his or her demise(in term of testacy)  or as deem fit by the Will administrator or probate registry in case of an intestacy.

Inshā Allāh, in our next class, we shall look at modalities to be adopted by Muslims living in non-Shari‘ah compliant countries in writing their Will or Bequest and make it valid in any Court of law.

Jazākumullāhu Khaeran for reading today’s lesson. 

Yours in Islām  

© Abū  ‘Ᾱisha 

The Instructor (+2348023670884)

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