Similarities and Differences between Al-wasiyyah and Common law Will (Part 1)

Bismillāhi Raḥmāni Raḥīm 
Date:   28th Dhul-Hijjah, 1441 A H / 18th August, 2020
Subject:   Al-Farā’id (The Islamic Law of Inheritance) 
Lesson:   79
Topic:  Al-Waṣiyyah (Sharī‘ah-Compliant Will/Bequest): Part 7
Sub-Topic:  Similarities and Differences of Al-Waṣiyyah (Bequest) and Common Law Will (Lesson 1)
Dear Participants,

Alhamdulillāhi, in cognizance of what we have learnt so far as regards Al-Waṣiyyah in Islām, it is imperative for us to discuss the differences and similarities between Islamic Will and Common law Will. This, without mincing words is necessary because millions of Muslims world over are living under the process of legal pluralism in a manner whereby Islamic Law( Sharī‘ah) are sometimes subjected to scrutiny, domestication  as customary law or facing superior imposition of colonial rules especially in Muslim countries where Sharī‘ah is not in force.

Nonetheless, we need to explore an avenue of opening the eyes of Muslims living under such atmosphere that, the Sharī‘ah implementation especially in the matters of Muslim Family or Personal Law (Ahwāl  al-Shakhsiyyah) is possible and could be activated. Therefore, we must explain the two phenomena inshā Allāh. We have said that Al-Waṣiyyah is a micro-institution of Islamic Inheritance system  which entails a legal document that outlines  how one’s estate is to be distributed in the event of affairs after the demise of the testator according to Islamic law (Sharī‘ah). Then, what is Will under Common law?

Under Common law, a Will is a declaration intended to have legal effect of the intentions of a testator with respect to his property or other matters which he desires to be carried into effect after his death. Accordingly, it is also seen as a testamentary and revocable declaration in a prescribed form which declares the intention and directives of the testator concerning his property as he deems fit. It is also believed that there are convergent and divergent laws guiding the writing, application and execution of Common law Will from one legal system to the other; this, as universally seen is against the uniformity of Al-Waṣiyyah as enshrined in the Qur’ān and the Sunnah of the Prophet (Peace of Allah be Upon Him).

Then, we need to ask the questions; what are the similarities and differences between the two systems? Are Muslims allowed to adopt the Common law Will application and jettison the Islamic law Will provision?
Inshā’ Allāh we continue in the next class.  
Jazākumullāhu Khayran for reading today’s lesson.  
Yours in Islām  
©Busari Muhammad Jamiu  (Abū  ‘Ᾱishah)
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