Wills Help Facilitate the Division of Inheritance
Wills are an essential instrument in an individual's estate planning, for Muslims the Islamic will is known as wasiat. What occurs after the death of a testator (pewasiat) involves several legal processes and specific steps that heirs must take. It's crucial for everyone to be aware to avoid issues in managing the deceased's estate.
Definition of Wasiat
Linguistically, the word wasiat originates from wassa, meaning to continue/convey/give ownership rights after death. It signifies linking the goodness obtained by an individual from their assets during their lifetime with the goodness following from the same assets after their death, which they will gain in the hereafter due to the testament they made regarding those assets. A testator is someone who gives the promise or instruction in a Wasiat.
The definition of wasiat is an iqrar or acknowledgment made by someone during their lifetime regarding their property or assets to fulfill a purpose of charity or any legitimate purpose according to Islamic law after their death. (Source: efaraid)
Evidence of Legitimacy of Wasiat
مِنْ بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ
(The divisions of inheritance is) after any bequest, he [may have] made or debt.” (Surah al-Nisa’:11)
Narrated by Abdullah bin Umar (may Allah be pleased with them), the Prophet Muhammad (peace be upon him) said:
امْرِئٍ مُسْلِمٍ، له شيءٌ يُرِيدُ أَنْ يُوصِيَ فِيهِ، يَبِيتُ لَيْلَتَيْنِ، إِلَّا وَوَصِيَّتُهُ مَكْتُوبَةٌ عِنْدَهُما حَقُّ
"A Muslim has no right to stay two nights having something to bequeath without having his last will and testament written down with him." (Narrated by Muslim)
Confirmation and Execution
After the testator's death, the initial step is to review and verify the Wasiat. This is to ensure its validity, and once confirmed, the execution of the Wasiat commences.
After the death of the testator, the wasiat will go through the process of investigation and examination. This includes assets stated in the will and those not explicitly mentioned.
However, there are conditions that wasiat must comply with, which are as follows:
Conditions for the Testator (Pewasiat)
- Has reached the age of eighteen;
- Is of sound mind;
- Acts voluntarily and is not coerced; and
- Is not prevented from managing their property.
Conditions for the Beneficiary of the Wasiat
- Is clearly identified;
- Can inherit the property according to Sharia Law; and
- Is qualified to own and manage the property according to any written law.
Conditions for the Assets in Wasiat
- Something that can be considered part of the estate or can be bought and sold during the testator's lifetime;
- Something of value and can be transferred after the testator's death;
- Something that exists in the possession of the testator, if specified, or exists at the time of the testator's death, if not specified; and
- Something that is lawful and not prohibited or sinful.
Appointment of the Executor
The court will appoint an executor who will be responsible for executing the Wasiat. This executor ensures the estate is managed and distributed according to the testator's wishes while adhering to (Islamic Law).
According to Sharia law, only one-third of the overall assets owned can be put in Wasiat. The asset must also still exist after the owner dies and is available after being used to cover burial costs and to pay for outstanding debts.
If the testator has a lot of debt, such that all their assets have been used to pay off the debt, the wait does not need to be executed.
All estate administration matters in Malaysia fall under the responsibility of four government-recognized and legally sanctioned institutions in Malaysia, which are:
- High Court of Civil Jurisdiction
- Sharia High Court
- Amanah Raya Berhad
- Director-General of Federal Lands and Mines
The executor of the wasiat has significant responsibility in executing it. To ensure the validity of the wasiat, and fair distribution of assets, this executor must carefully comply with laws and directions given by the testator.
Implementing the wasiat also involves the process of distributing the estate among the named heirs. This includes the distribution of jointly owned assets in compliance with the testator's wishes and provisions stated in the wasiat.
Division of Assets
The executor of the wasiat is responsible for distributing the estate to the named heirs as stipulated in the wasiat, ensuring compliance with the testator's wishes. Assets and donations will also be carried out by the executor based on the wasiat testator's instructions.
Any assets not mentioned in the wasiat or not assigned to anyone will be managed and distributed according to the Faraid.
Conclusion
Wasiat are not just crucial for estate planning but also play a role in preserving justice and complying with the wishes of a testator after their demise.
The lack of understanding and awareness among the community regarding the laws and procedure of what needs to be addressed to ensure a smooth and fair execution and to prevent disputes from occurring among the heirs and beneficiaries of the waist after the testator's death.
Key Highlights
1. Faraid is not the only method of dividing the inheritance; in fact, the owner can use will (Wasiat),Hibah, waqf, and trust to divide the property owned
2. The Will must be done when the owner of the property and will only be executed after his death
3. Managing our property well while we are still alive will help to avoid disputes among heirs after our death
