Guidance for making a will

Guidance for making a WILL

Last Will and Testament

Author: Al-Haji Ahmed A. M. Jaffer

© Copyright 2015 AL-ITRAH FOUNDATION

ISBN: 978 – 9987 – 17 – 023 – 4

Author: Ahmed A. M. Jaffer

Typeset by: Al-Itrah Foundation

First Published in 2015: Copies: 1000

All rights reserved.

No part of this publication may be reproduced, stored in retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior written permission of the copyright holder, except in the case of brief quotations quoted in articles or reviews.

Published by: Alitrah Foundation P. O. Box - 19701, Dar es Salaam, Tanzania Telephone: +255 22 2110640 / 2127555 Email: alitrah@yahoo.com Website: www.ibn-tv-com

Guidance for making a WILL by: Ahmed A. M. Jaffer

Guidance for making a WILL ‫ِب ْس ِبي الَّل ِب َّلال ْس ِب َّلالِب ِبي‬ Foreword In this day and age it is important that each and every individual should prepare a WILL which should be kept at a such a place that his heirs can have an easy access to the same so that his estate is distributed without any delay upon his demise. This is all the more necessary for those who have extended families with more than one wife.

Death is inevitable – nobody can predict how long he is going to live - nowadays sudden deaths are becoming common. In this context, Imam Ali (a.s.), whilst advising his son Imam Hassan (a.s.) has said: “ Therefore, my son, always keep three things in mind: 1. Death 2. Your Deeds and actions 3. The Life Hereafter In this way you will always be ready to face death and it will not catch you unaware”.

‘Bequests’ ex 1/3rd of the estate can be of many types which can all be specified in the WILL. A sage has truly said: “If you give from your heart, then your offering will be not only unimaginable but also everlasting”.

We have pleasure in publishing this booklet, which, in our opinion, is a Handy Guide for making an Islamic WILL. We hope readers will find this booklet to be useful and assist them to understand the format of preparing a WILL. Specimens of the WILL contained in the booklet would facilitate preparations of the WILL in keeping with the tenets of Islam – templates of the same would be placed on our website which can be downloaded by the readers.

This booklet also contains Charts for the distribution of estates of some selected cases of inheritance which may prove to be of assistance to those who undertake the tasks of distribution of estates of the deceased.

Mehboob Jaffer Somji Al-Itrah Foundation Dar es salaam. Tanzania.

1

Guidance for making a WILL by: Ahmed A. M. Jaffer

Guidance for making a WILL Contents: 1. What is a WILL? 2. NECESSITY of making a WILL 3. FORMAT of the WILL 4. ABSENCE of the WILL 5. WHO can make a WILL? 6. APPOINTMENT of EXECUTORS (Trustees) 7. EXECUTORSHIP (Trusteeship) 8. REMUNERATON for the Executors (Trustees)

9. EXECUTION of the WILL 10. ALTERATION and ADDITION to the WILL 11. REGISTRATION of a WILL 12. BEQUESTS or LEGACY 13. What is a “Good” WILL? 14. Other SALIENT points related to the WILL 15. SHARES of the HEIRS 16. FOOTNOTE 17. Specimens of WILL 2

Guidance for making a WILL by: Ahmed A. M. Jaffer

Guidance for making a WILL

What is a WILL?: A WILL (also known as WASIYET) is a set of instructions by which a person directs executors of his estate and his heirs to perform the following acts and deeds:       

   

Distribution of his wealth (estate) upon his demise Payment of debts including Khums and Zakat Payments for Kaffara and Nazar Payment of Mahar to wife in the event it has remained unpaid Performance of Namaz and Roza missed by him during his lifetime Performance of wajib Haj not performed by him during his lifetime Retribution for acts of injustice meted out causing material loss to known persons who cannot be traced or to unknown persons – this is known as Radd-e-Mazalim – it is a wajib Sadqa Establish Trusts or Wakfiyat Carry out acts of charity Do other acts for the benefit of the family and others Disposal of his body e.g. make arrangements for the burial at specified place

A WILL may also contain a set of advices to his heirs concerning the following:       

The type of treatment children should accord to their mother and grandparents The type of relationship brothers and sisters should have amongst themselves The type of relationship the heirs should have with other family members The type of education children should acquire – both secular and religious The type of good deeds heirs should perform Upkeep of prayers, maintenance of taqwa, zuhd, culture and good behavior Any other advice for the heirs deemed fit by the testator 3

Guidance for making a WILL by: Ahmed A. M. Jaffer

NECESSITY of making a WILL: According to Islam: The Holy Prophet Muahammad (s.a.w.s.) has said: ==“Man Ma-ta bi Wasiyyatin Mata Shaheeda”== “One who dies having made a (good) WILL, dies the death of a Martyr”, ==“Man Ma-ta bi gahyri Wasiyyatin, Ma-ta mytatal Jahiliyyah”==

“A person who dies without making a WILL, dies the death of an ignorant”, And the Holy Prophet (s.a.w.s.) has stressed: “It is not proper for a Muslim to pass two nights without having his WILL besides his pillow”

FORMAT of the WILL: The WILL can be verbal or in writing.

Also valid is a WILL made by way of signs by: - a dumb person - a person who cannot speak because of sickness - a person who can speak but due to certain reason or circumstance best known to him he prefers to notify his wish by way of signs provided the person making the WILL can make himself understood.

According to the Laws of the Land: The WILL must be in writing.

ABSENCE of the WILL: The following problems may possibly arise: 1. Who should administer and distribute the estate?

The family will have to appoint an executor or trustee willing to administer and distribute the estate and if no one is willing to do so, the Government will take over the estate and hand it over to the Public Trustee Department – this would result in delays and incur administrative expenses 2. Power to distribute the estate (also known as LETTER OF ADMINISTRATION or PROBATE) cannot easily be obtained. The case has to be referred to the Court of Law (which is time consuming) and in some countries like Kenya, two Sureties would be needed – each one having to give Surety amounting to twice the value of the estate of the deceased 4

Guidance for making a WILL by: Ahmed A. M. Jaffer

3. Pending receipt of the LETTER OF ADMINISTRATION or PROBATE, the Bank Account of the deceased would remain frozen and the beneficiaries would not be in a position to draw funds for their maintenance unless there is a Joint Account with one party being alive. However, pending full grant, an interim or limited grant can be obtained for specific purpose – say to operate a business or bank account with a view of preserving the estate of the deceased 4. Acts of wajibat e.g. Namaz, Roza, Haj of the deceased would remain unperformed 5. Debts including Khums, Zakat would remain unpaid 6. Acts of Charity desired by the deceased immediately upon his demise would be delayed – likewise, other wishes of the deceased would remain in abeyance.

Who can make a WILL?: Islamic law specifies the following conditions: 01. Bulugh (Puberty – Adulthood) The WILL of a minor is invalid – however, there is one exception to this rule: if the child has completed 10 years of age and has full understanding (Rushd), the WILL made by him for charity, pious acts and for the benefit of blood relatives would be valid 02. Sanity (Perfect intellect and understanding) Perfect intellect is necessary for making a WILL A WILL made by a person who is insane, or in the state of intoxication or in the state of unconsciousness is not valid 03. A WILL made by imbecile i.e. a person having a moderate mental retardation who can be considered to be an idiot, stupid or foolish person is not valid except when the WILL is found to have been made for a good cause 04. A WILL made by a feeble minded spendthrift (squanderer) related to his property is not valid, but is valid in matters of some tasks or duties to be performed for the deceased 05. Free Will (Perfect Freedom) A WILL made under duress i.e. under threat or undue pressure is not valid 06. Person making the WILL should not have attempted to commit suicide.

5

Guidance for making a WILL by: Ahmed A. M. Jaffer

The WILL made by a person after he has attempted to commit suicide is not valid except in respect of his wish concerning his burial. However, the WILL will be considered to be valid if the person had made the WILL before committing suicide though he might have contemplated to commit suicide whilst making the WILL.

APPOINTMENT of EXECUTORS (Trustees): The person making the WILL has a right to appoint Executors of his own choice subject to the following conditions: a) The Executor must be an Adult: If a minor has been appointed together with an adult on specification that the minor’s duties and rights would commence when he attains adulthood (bulugh), such an appointment would be valid b) The Executor must be Sane (of sound mind): - Appointment of an insane person is not valid irrespective as to whether the insanity is recurrent or permanent -

If an Executor becomes insane after the appointment, the appointment will lapse and he cannot be reappointed even after he has recovered his sanity

c) The Executor must be a Muslim: - If he renounces the religion of Islam, the appointment will lapse -

He cannot be reappointed even after he has re-embraced the religion of Islam

d) The Executor must be Trustworthy (Amin) - He may not necessarily be an Aadil i.e. a man of approved probity according to tenets of Islam e) A blind person, a woman and an heir can be appointed as Executors.

Such appointments are however Makrooh according to Ayatullah Al-Khoei and some other Marajae. f) The testator can name a replacement for an appointed Executor in the event of the death of such an Executor – the person named as replacement shall assume office upon the demise of the appointed Executor

6

Guidance for making a WILL by: Ahmed A. M. Jaffer

g) It is advisable for the testator (i.e. the person making the WILL) to obtain consent of Executors he intends to appoint prior to inserting their names in the WILL h) According to the Laws of Kenya, not more than four Executors can be appointed.

EXECUTORSHIP (Trusteeship): It is incumbent upon the Executor to take up the appointment and assume his responsibility immediately upon the demise of the testator -

He may however refuse to take up the appointment provided he informs the testator during his lifetime. If the information does not reach the testator prior to his death, the appointed Executor is duty bound to assume the responsibility – he cannot reject appointment after the testator’s death

-

An appointed Executor cannot appoint his own successor or entrust the management of the testator’s estate to his own Executor or to any other person unless the testator had authorized him to do so

-

An appointed Executor cannot retire himself and appoint another person to execute the WILL, but if he knows that the deceased did not mean that the Executor should execute the WILL himself, what he wanted was that the given work should be accomplished, he can appoint another person on his behalf

-

If a person appoints two persons as joint Executors and one of them dies, and if one person can execute the WILL, it is not necessary to appoint another person to replace the deceased Executor

-

It is advisable to make provision in the WILL assigning power to the Executors to appoint successors of their own choice for the smooth management of the estate

-

It is also advisable to empower the Executors to appoint professionals of their choice to execute and administer the estate.

7

Guidance for making a WILL by: Ahmed A. M. Jaffer

REMUNERATON for the Executors (Trustees): The Trustees may apportion fair and reasonable amount of remuneration for their services. But if there is an express understanding or there are implied signs that the services are supposed to be honorary, the Executor has to perform his duties ex-gratia since he had accepted the appointment without any condition.

It is advisable to make declaration in the WILL about the Executor’s remuneration.

EXECUTION of the WILL: For recognition of the WILL in the Court of Law, it must be:    

Hand written, typed or printed Dated Signed by the Testator Attested by TWO witnesses - The names and addresses of the Witnesses must be recorded against their signatures at the time of signing and not later -

It is not necessary for the Witnesses to know the contents of the WILL – they are only witnesses to the Signature of the Testator

-

Heirs and beneficiaries of the estate cannot become the Witnesses. If an heir signs as a witness, he cannot get the bequest in his favor mentioned in the WILL

-

Any other person can become a Witness, not necessarily a Muslim.

ALTERATION and ADDITION to the WILL: Any Alteration and/or Addition to the WILL can only be made by way of CODICIL (i.e. addition to the WILL). It is better to prepare a new WILL rather than a CODICIL as likelihood of complications arising there from cannot be ruled out -

It is however advisable to show all assets and their locations and also all the debts and liabilities in the Codicil instead of the WILL which Codicil can be updated from time to time without necessitating preparation of a new WILL with the change in the pecuniary position of the testator from time to time.

8

Guidance for making a WILL by: Ahmed A. M. Jaffer

REGISTRATION of a WILL: In Kenya a WILL can be registered with the Land Office by payment of stamp duty – however this is not mandatory. A WILL stands to be recognized in the Court of Law without payment of stamp duty.

BEQUESTS or LEGACY: Whilst preparing the WILL, the Testator should bear in mind that he has got a right to dispose only ONE-THIRD of his net estate – the remaining TWO-THIRDS have to be distributed to the heirs as per the laid down rules in the tenets applicable to the followers of the Shia Ithna Asheri faith of Islam.

However, if the bequests exceed ONE-THIRD of the estate, consent of the heirs and beneficiaries has to be obtained for the amount in excess of ONE-THIRD of the estate – -

the consent would be valid only if the heirs show their agreement by words or by conduct (even after some time) – their tacit approval will not suffice .

But, if some heirs consent and some decline, the WILL would be binding for the excess to the extent of the shares of those who have given consent.

However, if the heirs had given their consent prior to the death of the testator, they cannot withdraw their consent after his death

-

a minor’s consent, even if he has full understanding (Rushd) is not valid – the child’s share will have to be set aside in full prior to determining the extent of the excess permissible by way of obtaining consent from other heirs.

Some of the following Mustahhabat have been enumerated for consideration for the purposes of Bequests ex ONE - THIRD of the estate:  Bequest for feeding poor and incapacitated persons – this carries Sawab 10 times  Bequest in favor of close relatives e.g. grandchildren – children of one’s own deceased son or daughter – this carries Sawab 70 times  Bequest in favor of other poor or incapacitated relatives – this carries Sawab 700 times

9

Guidance for making a WILL by: Ahmed A. M. Jaffer

 Bequest in favor of one’s own parents – this carries Sawab 70,000 times  Bequest for preservation and propagation of religion – this carries Sawab 100,000 times

What is a “Good” WILL?: A “Good” WILL is the one:  Which has been drawn on the basis of equity and justice so that none of the heirs feel deprived of their rightful shares  Which contains declaration concerning the household furniture, fixtures and equipments  Which contains declaration concerning clothes, ornaments and jewellery made and given to wife, children and others from time to time and which are in his custody  Which contains declaration of the amounts or items held in trust (Amanat)  Which makes a declaration about the appointment of a guardian or guardians for his minor children with instructions concerning their education and welfare advisable to appoint the children’s mother as the sole or one of the guardians  Which has an attachment containing details of his wealth and their respective locations and also details of the debts  Which has Bequests of “Sadaqat - e – Jariyah” i.e. reaping perpetual benefits  Which has provisions for fulfillment of missed out wajibat  Which has provisions for Radd – e – Mazalim i.e. retribution for injustices causing material loss meted out to known persons whose whereabouts are not known and also to unknown persons  Which has declaration concerning the locations of wealth throughout the globe and has provisions for quick disposal and distribution of wealth

10

Guidance for making a WILL by: Ahmed A. M. Jaffer

 Which specifies the names of Executors with rights of remuneration, appointment of successors and nomination of professionals for execution of the estate  Which contains words of wisdom and a set of advices for the heirs and beneficiaries  Which is placed at a location easily accessible to the heirs upon his demise.

Other SALIENT points related to the WILL and INHERITANCE: o A WILL specifying performance of Haram (prohibited) deeds is not valid e.g. contribution towards promotion of music, dancing, etc o It is better to declare in the WILL, the Amanats i.e. items of people held in Trust so that the same do not form part of his estate for distribution o If a bequest has been made for a child who is still in the mother‟s womb, such bequest will be applicable only if the child is born alive after the testator‟s death o Kaffara and Nazar, due if any, will have to be disbursed ex ONE-THIRD of the estate and not deducted as a debt form the whole estate o A WILL would not be valid with regard to excluding a particular heir for whatever reason apart from the reason of becoming „Murtad‟ i.e. abandoning the faith o The following would not be entitled to inheritance: -

Murderer: an heir who has killed the deceased (intentionally)

-

Kafir (unbeliever): an heir who is Kafir or Murtad. However such an heir would be entitled to get inheritance from ONE-THIRD of the estate if the Testator had made such an apportionment in his WILL since it is permissible for the testator to make bequests to non-Muslims also from ONE-THIRD of his estate

-

Illegitimate child: an illegitimate child is not entitled to inheritance from his parents nor are the parents entitled to inheritance from the child

o There are two types of heirs and beneficiaries: 

NASABI - blood relatives



SABABI – relationship by way of marriage

11

Guidance for making a WILL by: Ahmed A. M. Jaffer

o NASABI heirs are divided into three groups: 1) Mother, father, children and if the children are not alive, the grand children their descendents, however low, and among them whoever is nearest to the dead person inherits his property – as long as even a single person from this group is present, people in the second group do not inherit 2) Paternal grandfather and grandmother, Maternal grandfather and grandmother and brothers and sisters and if the siblings are not alive, their children - their descendents, however low, and among them whoever is nearest to the dead person inherits his property – as long as even a single person from this group is present, people in the third group do not inherit 3) Paternal uncles and aunts, Maternal uncles and aunts and after them their children - their descendents, however low - as long as even a single person from the Paternal uncles and aunts and Maternal uncles and aunts is present, their children do not inherit. o SABABI heirs: Spouses – husband and wife get inheritance side by side with all the three groups of the NASABI heirs.

-

The wife does not inherit: 

the land of a house or garden or a farm or any other land



that which stands on the land, like the house and trees – but she inherits from their proceeds



the crops on agricultural or other lands – but she inherits from their proceeds

However, should the wife wish to have any right of discretion over the items she cannot inherit, she should obtain the permission of other heirs to do so.

Likewise, other heirs do not have the right of discretion without her permission over the items from the proceeds of which the she is entitled to inheritance, until her share has been given to her -

If the husband gives Talaq-e-Raj‟i (revocable divorce) to his wife and during the period of Iddah (seclusion), either the husband or wife dies, both are entitled to inheritance from each other

-

If the husband divorces his wife during sickness, the wife would be entitled to inheritance if the husband dies before the expiry of twelve lunar months from the date of divorce subject to the following conditions: 12

Guidance for making a WILL by: Ahmed A. M. Jaffer

i.

She has remained unmarried during that period

ii.

She had not sought the divorce herself i.e. Khula

iii. If the husband died during the period of sickness in which he divorced her and has not died after having recovered from that sickness. o HIBWA: The eldest son inherits the following of his father: 1. Holy Quran 2. Ring 3. Sword - (if any) – dagger, spear, gun, rifle or any such weapon may be included 4. Clothes of the deceased - according to Ayatullah Al-Khoei – only worn clothes – according to Ayatullah Seestani - both worn and new (not worn) clothes -

Of the first three items, if the deceased has left more than one, the eldest son should arrive at an agreement with other heirs in respect of those items as an obligatory precaution (ehtiyat-e-wajib)

o It is wajib (incumbent) upon the eldest son to perform the Qadha Namaz and Roza of his father – however he is exonerated if the father has made a provision in the WILL for the same ex ONE-THIRD of his net estate o Both males and females should prepare WILL.

SHARES of the HEIRS: The basic shares of the most common heirs are as follows: WIFE: o If the deceased having Child/Children: 1/8th of the Estate = 12.50% o If the deceased not having Child : 1/4th of the Estate = 25.00% HUSBAND o If the deceased having Child/Children: 1/4th of the Estate = 25.00% o If the deceased not having Child : ½ of the Estate = 50.00%

13

Guidance for making a WILL by: Ahmed A. M. Jaffer

MOTHER: o If the deceased not having Child or Brother : 1/3rd of the Estate = 33.33% o If the deceased having Child or Brother* : 1/6 th of the Estate = 16.66% (* The Brother of the deceased does not inherit anything, but his existence affects the share of the Mother – instead of 1/3rd, it becomes 1/6th) FATHER: o If the deceased having Child/Children : 1/6th of the Estate = 16.66% o If the deceased not having Child : The remaining balance of the Estate after the allocation of the share/s of the spouse &/or the mother CHILDREN: o The balance of the Estate after the allocation of the share/s of the spouse &/or the Parents o Male child gets twice of the share of the Female child.

Enumerated below are the Charts of the calculation of the shares of some cases of inheritance: -

with the exercise of the option of Bequest of 1/3rd of the Estate

-

without the exercise of the of the option of Bequest of 1/3 rd of the Estate i.e having NIL Bequest .

(1) : 1 Wife & 1 Son & 1 Daughter (Parent/s not alive) Wife 12.50%

Wife 8.33%

1 Daughter 19.45%

BEQUEST

33.33%

1 Daughter 29.17%

1 Son 38.89%

BEQUEST

NIL Parents NOT ALIVE

Parents NOT ALIVE

14

1 Son 58.33%

Guidance for making a WILL by: Ahmed A. M. Jaffer

(2) : Husband & 1 Son & 1 Daughter (Parent/s not alive) Husband 25.00%

Husband 16.66% 1 Daughter 16.67%

BEQUEST

33.33%

1 Daughter 25.00%

1 Son 33.34%

Parents NOT ALIVE

BEQUEST

NIL

1 Son 50.00%

Parents NOT ALIVE

(3) : 1 Wife & 2 Sons & 1 Daughter (Parent/s not alive) Wife 12.50%

Wife 8.33% 1 Daughter 11.68%

BEQUEST

33.33%

1 Daughter 17.50%

1st Son 23.33%

BEQUEST

NIL

1st Son 35.00%

2nd Son 35.00%

2nd Son 23.33%

(4) : Husband & 2 Sons & 1 Daughter (Parent/s not alive) Husband 25.00%

Husband 16.67%

1 Daughter 10.00%

BEQUEST

33.33.%

1 Daughter 15.00%

1st Son 20.00%

BEQUEST

NIL

2nd Son 30.00%

2nd Son 20.00%

15

1st Son 30.00%

Guidance for making a WILL by: Ahmed A. M. Jaffer

(5) : 2 Wives & 2 Sons & 1 Daughter (Parent/s not alive) Each Wife 6.25%= 12.50%

Each Wife 4.17% = 8.34% 1 Daughter 11.67%

BEQUEST

33.33%

1st Son 23.33%

1 Daughter 17.50%

BEQUEST

NIL

1st Son 35.00%

2nd Son 35.00%

2nd Son 23.33%

(6) : 1 Parent & 1 Wife & 1 Son & 1 Daughter

Wife 8.33% Daughter 15.75%

BEQUEST

33.33%

Wife 12.50% Parent 11.11.%

Daughter 23.61%

Son 31.48%

BEQUEST

NIL

Parent 16.66%

Son 47.23%

(7) : 2 Parents & 1 Wife & 1 Son & 1 Daughter

Wife 8.33%

Daughter 12.04%

BEQUEST

33.33%

Wife 12.50%

Each Parent 11.11.%= 22.22.%

Daughter 18.06%

Son 24.08%

BEQUEST

NIL

Son 36.12%

16

Each Parent 16.66%= 33.32

Guidance for making a WILL by: Ahmed A. M. Jaffer

(8) : 1 Parent & Husband & 1 Son & 1 Daughter

Husband 25.00%

Husband 16.66%

BEQUEST

Daughter 12.97%

33.33%

Parent 11.11.%

BEQUEST

Daughter 19.45%

NIL

Son 25.93%

Parent 16.66%

Son 38.89%

(9) : 2 Parents & Husband & 1 Son & 1 Daughter

Husband 25.00%

Husband 16.66%

Daughter 9.27%

BEQUEST

33.33%

Each Parent 11.11.% = 22.22%

Daughter 13.90%

BEQUEST

NIL

Each Parent 16.66% = 33.32%

Son 27.78%

Son 18.52%

(10) : 1 Wife – no children – 1 Paternal Uncle & 1 Maternal Aunt (Parents not alive) Wife 16.67%

Wife 25.00%

BEQUEST

BEQUEST

33.33%

Maternal Aunt 16.67%

NIL

Paternal Uncle 33.33%

Maternal Aunt 25.00%

17

Paternal Uncle 50.00%

Guidance for making a WILL by: Ahmed A. M. Jaffer

(11) : Husband – no children – 1 Paternal Uncle & 1 Maternal Aunt (Parents not alive)

Husband 33.34%

Husband 50.00%

BEQUEST

BEQUEST

33.33%

NIL

Paternal Uncle 22.22%

Maternal Aunt 11.11%

Paternal Uncle 33.33%

Maternal Aunt 16.67%

(12) : 1 Wife – no children – 2 Real Brothers – 1 Real Sister Wife 16.67%

Wife 25.00%

BEQUEST

BEQUEST

33.33%

Real Sister 10.00%

NIL

Each Real Brother 20.00% = 40.00%

Real Sister 15%

Each Real Brother 30.00% = 60.00%

(13) : Husband – no children – 2 Real Brothers – 1 Real Sister Husband 33.32%

Husband 50.00%

BEQUEST

BEQUEST

33.33%

Real Sister 6.67%

NIL

Each Real Brother 13.34% =26.68%

Real Sister 10.00%

18

Each Real Brother 20% = 40.00%

Guidance for making a WILL by: Ahmed A. M. Jaffer

(14) : Father, Mother & 1 Wife – no children – No Brothers – No Sisters Wife 16.66%

Wife 25.00%

BEQUEST

BEQUEST

33.33%

NIL

Mother 25%

Father 33.34%

Mother 16.67 %

Father 50.00%

(15) : Father, Mother, Husband – no children – No Brothers – No Sisters Husband 33.32%

Husband 50.00%

BEQUEST

BEQUEST

33.33%

NIL

Father 22.23%

Mother 11.12%

Father 33.33%

Mother 16.67%

(16) : Father, Mother & 1 Wife – no children – 1 Brother – 2 Sisters Wife 16.66%

Mother 8.34%

BEQUEST

33.33%

Wife 25.00%

Father 41.67%

Mother 12.50%

Brothers & Sisters NIL

BEQUEST

NIL

Brothers & Sisters NIL

19

Father 62.50%

Guidance for making a WILL by: Ahmed A. M. Jaffer

(17) : Father, Mother & Husband – no children – 1 Brother – 2 Sisters Husband 50.00-%

Husband 33.32%

Mother 5.56%

BEQUEST

33.33%

Father 27.79%

Mother 8.33%

BEQUEST

NIL

Father 41.67%

Brothers & Sisters NIL

Brothers & Sisters NIL

(18) : 1 Parent (Father or Mother) & 1 Wife – no children – No Brothers – No Sisters

Wife 16.67%

Wife 25.00%

BEQUEST

BEQUEST

33.33%

NIL

1 Parent 75.00%

1 Parent 50.00%

(19) : 1 Parent (Father or Mother) & Husband – no children – No Brothers – No Sisters

Husband 50.00%

Husband 33.34%

BEQUEST

BEQUEST

33.33%

NIL

1 Parent 50.00%

1 Parent 33.33%

FOOTNOTE:

These are general guidelines for preparing a WILL. For further details and verification, readers are advised to consult Legal experts and Ulama and refer the Tawdheeh-ul-Masael of their respective Maraja–e–Taqleed.

20

Specimen WILL for MALES

My My

WILL

Photo

Name: ………………………………………….

21

Specimen WILL for MALES

1. This is the last WILL of me Mr. ……………………. presently residing in ………………….. having the address of

…………….……………………………………………………

prepared by me on my own free will and accord without any duress whatsoever.

1. I am a Shia Ithna-Asheri Muslim and I hereby declare that the administration and devolution of my estate be governed by the Islamic Law of Succession and Inheritance as followed by Muslims of Shia Ithna-Asheri sect of Islam.

2. I hereby REVOKE all my former Wills, Testaments and Codicils made by me and affirm this to be my last Will and Testament.

3. I declare that the below named are my only lawful heirs and beneficiaries: 1. My only Wife …………………. daughter of …….……………………………………

2. My only Daughter ……………. Wife of …………………………………………….

3. My first Son …………………………….

4. My second Son ………………………….

Apart from the above named have no other wife or children nor are there any other heirs and beneficiaries.

5.

All my household goods, furniture, fixtures, electronic equipments, utensils, crockery and cutlery, etc belong to my wife as a gift given to her during my life time and do not form part of the estate for distribution.

6. I hereby declare that all the clothes, jewellery and ornaments which from time to time have been made and given by me to my wife, my children and to my other family members which are in their possession or kept in the family safe or safe-deposit vaults are their absolute Properties and do not form part of my estate for distribution.

7. The Bank account opened in the name of my wife is her absolute property and does not form part of my estate for distribution.

8. The Bank account opened in the joint names of me and wife would form part of my estate as the joint account has been opened by us only for the convenience of its operation.

22

Specimen WILL for MALES

9. I hereby declare that I have been paying KHUMS regularly every year and the date for the calculation of Khums has been set as …………….. of each year. Upon my demise, Khums will be due for payment for the year in mention from that date up to the date of my demise as a debt ex my estate.

10. As permissible under the Islamic law of Successions and Inheritance followed by Muslims of Shia Ithna-Asheri sect of Islam, I hereby direct the executors and trustees of my estate that having paid all the debts including Khums and Zakat, the following be effected ex One-Third of my net-estate: i.

First of all pay all the expenses related to my funeral and burial as well as the adequate expenses for the customary ceremonies after my burial as prescribed amongst the community to which I belong. Thereafter:

ii. Arrange for the performance of the following: o Qaza Namaz for ……… years o Qaza Roza for ………... months; iii.

Pay the amount of ………… as Radd-e-Mazalim;

iv.

Pay a lump sum amount of ………… towards tableegh as determined by my heirs;

v.

The residue of the One-Third of my estate be invested and the proceeds of the same be utilized for the following purposes for which a Trust be established: 01. donations towards upkeep of masajid and imambargahs 02. assistance to deserving Sadat 03. assistance to poor moa’mineen 04. promotion of health 05. promotion of secular and religious education;

10.

I hereby appoint the following to be the joint executors and trustees of this my WILL: 1. ……………………………………….

2. ……………………………………….

11. I hereby authorize my executors to appoint successor/s of their choice and also give full authority to them to appoint assistant/s and/or professional and/or seek assistance from any quarter/s for the purposes of the administration and execution of my estate; 23

Specimen WILL for MALES

12. I hereby authorize my executors to apportion fair and reasonable amount of remuneration for their services and remunerate the assistants and/or professionals and pay other expenses for assistance sought from other quarters for the purposes of the administration and execution of my estate; 13. I direct that the executors shall soon after my demise take possession of my assets and give effect to the provisions of this my WILL as expeditiously as possible 14. I hereby appoint …………………............................ as the guardian/s of my minor children upon my demise and I direct my executors to set aside and hold the proportionate shares of inheritance of my minor children for transfer to them upon becoming adult – meanwhile, part of their respective shares of inheritance be invested to generate income with the consent of their guardian/s, and I hereby authorize the executors to periodically allocate necessary funds from their respective accounts to their guardian/s enable meet the necessary expenses for their upbringing and education till they become adult 15. I solemnly request my children to treat their mother with great love, respect and consideration and look after her with kindness and affection.

16. It is my most earnest request to all my heirs that should any difference of opinion arise at any time between them as regards to the distribution of my assets or as regards to the character, ownership or value of the same or as to the meaning or true interpretation of anything contained in my WILL or CODCIL thereto, they shall on no account resort to Court of Law but instead they should settle their differences amongst themselves amicably with love and affection with the generous idea of giving rather than taking – thus only would they would have me rest in peace,

24

Specimen WILL for MALES

17. I conclude with love and greetings to my heirs and beneficiaries and sincerely pray that may Allah grants them tawfique to: - remain on the right path - maintain constant close relationship amongst themselves and other family members - maintain good relationship with the neighbors - look after the poor and needy - seek religious knowledge all the time and spend time in supplications for spiritual uplift - perform prayers on time and maintain taqwa, zuhd and culture - have respect for elders and develop good nature and behavior - carry out good deeds all the time for the benefit of humanity at large, and - remember me in their prayers = Ilahi Amen.

IN WITNESS WHEREOF, I, the said ……………………………, have signed my name at the end of this my WILL, at Mombasa, Kenya, this …...…day of ..…………….., 20…..

Signature: ………………………………………..

SIGNED by the said: ……………………………, in the presence of us both present at the same time who in his presence and at his request and in the presence of each other have hereto subscribed our names as WITNESSES to the signature in this WILL at Mombasa, Kenya, this ….……day of ..……………., 20…..: WITNESSES: 1. Name: ……………………………………….

2. Name: ………………………………….

Address: …………………………………….

Address: ……………………………….

……………………………………

……………………………….

Signature: ……………………………………

Signature: ………………………………

25

Specimen WILL for MALES

‫ِإ َّن ِإ َّن ِإ َو ِإ َّن ِإ َو ْي ِإو َو ِإا ُع َوو‬ "To Allah We belong, and to Him is our return" [2:156]

ۗ ‫َّللا‬ ‫ِإِلَو ْيفُع ِإس ُعك ْيم ِإم ْين َوخ ٍْير تَو ِإج ُعد هُع ِإع ْين َود َّن ِإ‬ ‫ص ٌرر‬ ‫َوو َو ِإ‬

‫َّنز َوك ةَو ۚ َو َوم تُعقَو ِّد ُعم‬ ‫َّللا ِإ َوم تَو ْي َوم ُع‬ ‫ِإ َّنو َّن َو‬

‫ص َوَّنَلةَو َو آتُع‬

“And be steadfast in prayer and regular in charity; And whatever good you send forth for your souls before you, you shall find it with Allah; for Allah sees Well all that you do.”

[2:110]

26

‫َو أَو ِإق ُعم‬

Specimen WILL for FEMALES

My My

WILL

Photo

Name: ………………………………………….

27

Specimen WILL for FEMALES

1. This is the last WILL of me Ms. ……………………. presently residing in …………… having the address of …………………………………………………………………. prepared by me on my own free will and accord without any duress whatsoever.

2. I am a Shia Ithna-Asheri Muslim and I hereby declare that the administration and devolution of my estate be governed by the Islamic Law of Succession and Inheritance as followed by Muslims of Shia Ithna-Asheri sect of Islam.

3. I hereby REVOKE all my former Wills, Testaments and Codicils made by me and affirm this to be my last Will and Testament.

4. I declare that the below named are my only lawful heirs and beneficiaries: 1. My Husband …………………………………………………………………………..

2. My only Daughter ……………. Wife of …………………………………………….

3. My first Son …………………………….

4. My second Son ………………………….

Apart from the above named have no other heirs and beneficiaries.

5.

All my household goods, furniture, fixtures, electronic equipments, utensils, crockery and cutlery, etc belong to me as a gift given to me by my husband during his life time. Since it forms part of the estate for distribution, it is my express wish and desire that as long as my Husband is alive; the same should remain in use by him.

6. I hereby declare that all the clothes, jewellery and ornaments which from time to time have been made and given by me to my children and to my other family members which are in their possession or kept in family safe or safe-deposit vaults are their absolute Properties and do not form part of the estate for distribution.

7. The Bank account held in the joint names of my husband and myself would not form part of my estate since the joint account has been opened only for the convenience of its operation – the whole amount belongs to my husband.

8. I hereby declare that I have been paying KHUMS regularly every year and the date for the calculation of Khums has been set as …...………….. of each year. Upon my demise, Khums will be due for payment for the year in mention from that date up to the date of my demise as a debt ex my estate.

28

Specimen WILL for FEMALES

9. As permissible under the Islamic law of Successions and Inheritance followed by Muslims of Shia Ithna-Asheri sect of Islam, I hereby direct the executors and trustees of my estate that having paid all the debts including Khums and Zakat, following be effected ex One-Third of my net-estate: i.

Arrange for the performance of the following: o Qaza Namaz for ……… years o Qaza Roza for ………... months;

ii. Pay the amount of …………………. as Radd-e-Mazalim; iii. Pay a lump sum amount of ………… towards tableegh as determined by my heirs; iv. The residue of the One-Third of my estate be invested and the proceeds of the same be utilized for the following purposes for which a Trust be established: 01. donations towards upkeep of masajid and imambargahs 02. assistance to deserving Sadat 03. assistance to poor moa’mineen 04. promotion of health 05. promotion of secular and religious education;

10.

I hereby appoint the following to be the joint executors and trustees of this my WILL: 1. ……………………………………….

2. ……………………………………….

11. I hereby authorize my executors to appoint successor/s of their choice and also give full authority to them to appoint assistant/s and/or professional and/or seek assistance from any quarter/s for the purposes of the administration and execution of my estate; 12. I hereby authorize my executors to apportion fair and reasonable amount of remuneration for their services and remunerate the assistants and/or professionals and pay other expenses for assistance sought from other quarters for the purposes of the administration and execution of my estate;

29

Specimen WILL for FEMALES

13. I direct that the executors shall soon after my demise take possession of my assets and give effect to the provisions of this my WILL as expeditiously as possible.

14. I solemnly request my children to treat their father with great love, respect and consideration and look after him with kindness and affection.

15. It is my most earnest request to all my heirs that should any difference of opinion arise at any time between them as regards to the distribution of my assets or as regards to the character, ownership or value of the same or as to the meaning or true interpretation of anything contained in my WILL or CODCIL thereto, they shall on no account resort to Court of Law but instead they should settle their differences amongst themselves amicably with love and affection with the generous idea of giving rather than taking – thus only would they would have me rest in peace, 16. I conclude with love and greetings to my heirs and beneficiaries and sincerely pray that may Allah grants them tawfique to: - remain on the right path - maintain constant close relationship amongst themselves and other family members - maintain good relationship with the neighbors - look after the poor and needy - seek religious knowledge all the time and spend time in supplications for spiritual uplift - perform prayers on time and maintain taqwa, zuhd and culture - have respect for elders and develop good nature and behavior - carry out good deeds all the time for the benefit of humanity at large, and - remember me in their prayers = Ilahi Amen.

30

Specimen WILL for FEMALES

IN WITNESS WHEREOF, I, the said ……………………………, have signed my name at the end of this my WILL, at Mombasa, Kenya, this …..…day of ..…………….., 20…...

Signature: ………………………………………..

SIGNED by the said: ……………………………, in the presence of us both present at the same time who in his presence and at his request and in the presence of each other have hereto subscribed our names as WITNESSES to the signature in this WILL at Mombasa, Kenya, this ….……day of ..……………., 20….. :

WITNESSES: 1. Name: ……………………………………….

2. Name: ………………………………….

Address: …………………………………….

Address: ……………………………….

……………………………………

……………………………….

Signature: ……………………………………

Signature: ………………………………

31

Specimen WILL for FEMALES

‫ِإ َّن ِإ َّن ِإ َو ِإ َّن ِإ َو ْي ِإو َو ِإا ُع َوو‬ "To Allah We belong, and to Him is our return" [2:156]

ۗ ‫َّللا‬ ‫ِإِلَو ْيفُع ِإس ُعك ْيم ِإم ْين َوخ ٍْير تَو ِإج ُعد هُع ِإع ْين َود َّن ِإ‬ ‫ص ٌرر‬ ‫َوو َو ِإ‬

‫َّنز َوك ةَو ۚ َو َوم تُعقَو ِّد ُعم‬ ‫َّللا ِإ َوم تَو ْي َوم ُع‬ ‫ِإ َّنو َّن َو‬

‫ص َوَّنَلةَو َو آتُع‬

“And be steadfast in prayer and regular in charity; And whatever good you send forth for your souls before you, you shall find it with Allah; for Allah sees Well all that you do.”

[2:110]

32

‫َو أَو ِإق ُعم‬

It is narrated that the Holy Prophet Muhammad (s.a.w.s.) said: Everyday the Earth addresses human beings.

Likewise, the Grave also addresses people in the following ways: 1. “I am an isolated and lonely house - bring with you a friend and a helper”.

2. “I am a house which is totally dark - bring with you a lantern”.

3. “I am a house consisting of dust and clay – bring with you a carpet and a bedding”.

4. “I am a house infested with snakes and scorpions – bring with you disinfectants to drive them away”.

5. “I am a house of poverty, devoid of basic necessities – bring with you provisions and equipments”.

When asked, the Holy Prophet (s.a.w.s.) stated: 1. The Study and Recitation of the Holy Quran would be the best friend and helper in the grave.

-

It is recommended that one should study and recite verses of the Holy Quran at Sahar time And the children should be trained to do so right from childhood.

2. Salat-ul-Layl i.e. Namaz-e-Shab would be the lantern to brighten the grave.

3. A’amal-e-Saleh i.e. Good Deeds would be the carpet and the bedding in the grave.

4. Tawba – Sincere Repentance would be the disinfectant to drive away the snakes and scorpions in the grave.

5. Kalema-e-La ilaha illallah would be the provision and equipment in the grave.

-

It is recommended that one should recite Kalema-e-La ilaha illallah at least 100 times in a day sincerely without RIYAH i.e. SHOWING OFF i.e. without letting others know – this can be done silently with a closed mouth in such a way that a person standing next by would not even know.