Legal Buzz

Contact Us :
603-4280.6202
603-4280.8220

Keeping Your Business Out Of  Trouble And On Track

Issues 17




Contrary to the popular belief that Muslim cannot create will, the opposite of it is true. The confusion was among the Muslim was caused by section 2 (2) of the Wills Act 1959 (Revised 1988) which states that “This Act shall not apply to the wills of persons professing the religion of Islam whose testamentary powers shall remain unaffected by anything in this Act contained”. This article shall discuss the enforceability of the will created by Muslim.


DEFINITION OF WILL 

The word will was derived from Arabic term “wasisyya” which means instruct, advise, and promise or assignment of property after the death of the person making the will. A Will is a document or instrument which declares or contains the intention of the owner of the property as to how his property is to be disposed or distributed after his death.


DALIL OF WILL

a) Al-Quran “Prescribed for you when death approaches (any) one of you if he leaves wealth (is that he should make) a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.” (Surah Al-Baqarah- 180)

b) As-Sunnah “Narrated Sad bin Abu Waqqas: The Prophet came visiting me while I was (sick) in Mecca, ('Amir the sub-narrator said, and he disliked to die in the land, whence he had already migrated). He (i.e. the Prophet) said, "May Allah bestow His Mercy on Ibn Afra (Sad bin Khaula)." I said, "O Allah's Apostle! May I will all my property (in charity)?" He said, "No." I said, "Then may I will half of it?" He said, "No". I said, "One third?" He said: "Yes, one third, yet even one third is too much. It is better for you to leave your inheritors wealthy than to leave them poor begging others, and whatever you spend for Allah's sake will be considered as a charitable deed even the handful of food you put in your wife's mouth. Allah may lengthen your age so that some people may benefit by you, and some others be harmed by you." At that time Sad had only one daughter.”


PILLARS OF WILL

In order for a Will to be valid, there are 4 pillars to be fulfilled:-

a) Capacity of the Testator According to the Muslim law, any person, who is of majority age and is of sound mind, and who is the owner of the property to be bequeathed can make a valid Will. Section 6 of Enakmen Wasiat Orang Islam Selangor 1999 states that the Testator must be 18 years old and above, of sound mind, by his free will and choice and need to be the owner of the property to be bequeathed.

b) Capacity of the Beneficiary Any person having capacity to hold the property can be a beneficiary. The Beneficiary must be in existence at the time of death of the Testator. However any bequest made in favour of any legal heir already entitled to Faraidh shall be invalid unless the Testators’ entire legal heir consented to bequeath.

c) Property to be bequeath The Testator can bequeath any property belongs to him whether movable or immovable. The property must be in existence and transferable upon the death of the Testator.

d) Ijab and Qabul The Will may be made in writing or oral or even by gestures of the Testator. However, the intention of the Testator must be clear that the Will is to be executed after his death. Any expression which signifies the Testator’s intention to execute a Will is sufficient. The Beneficiary shall signify his acceptance to the bequest of the property after the death of the Testator. Acceptance or refusal of the bequest made by the Beneficiary when the Testator is still alive is null and void.


TESTAMENTARY CAPACITY

It is most important the any Muslim who wishes to make Will upon their death, assets to be distributed in the Will must not exceed 1/3 if the total value of the Testator’s asset. Furthermore, the 1/3 of assets value may be given to anyone or any institutions other than their heirs. Section 26 (1) of Enakmen Wasiat Orang Islam (Selangor) 1999 states that:

“Jika sesuatu wasiat dibuat kepada seseorang yang bukan waris atas kadar yang tidak melebihi satu pertiga daripada harta pusaka pewasiat selepas diselesaikan segala hutangnya, wasiat tersebut hendaklah berkuat kuasa tanpa perlu mendapat apa-apa persetujuan waris-warisnya.”

Will that bequest more than 1/3 if the total value of the Testator’s asset to an heir must have the consent to the Will. If one of the heirs does not consent to the Will, the Will shall be null and void. In the case of Abdul Rahim v Abdul Hameed & Anor [1983] 2 MLJ 78 states that:

“In Muslim law, a testator has power to dispose of not more than one-third of his estate and the residue descends in in fixed proportions unless the heirs consented.”

In the case of Amanullah Bin Haji Ali Hassan v Hajjah Jamilah [1975] 1 MLJ 30 where the court states that: 

 “Even if the 1968 will was validly made, it would be void because it will offend these two principles of Muslim law:

(1) A testamentary disposition is invalid if it purports to dispose of more than a third of the estate. 

(2) A testamentary disposition is invalid if it purports to benefit any of the testator’s heir. Muslim law appears to prohibit a Muslim from disposing of his estate by will so that a beneficiary gets more than his share as prescribed by the law of distribution.”

As conclusion, from the statutes and case law referred, it is clear that a Will made by Muslim must not contradict two fundamental testamentary capacities. Firstly, the Testator cannot bequeath more than 1/3 of his property. Secondly, the Beneficiary from the Will, must not be the Testator legal heir. If the Will made by contradict the two fundamental capacities, then the will shall be null and void.

However, provided that the legal heir of the Testator has consented to the Will although the will contradict the fundamental capacities, the will can be executed.