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Common Errors

Sep 18, 2007

 

Common Errors

 

– A daughter is given a substantial gift at the time of nikâh and is then excluded from the estate;
– The testator stipulates that all his assets go to his wife after his demise and after her demise to their children;
– Certain children for various reasons are excluded from the estate; and
– A testator bequests shares in accordance to his discretion and not in accordance with the law of Allâh Ta’âla.

 

Matrimonial Regime
Islamic marriages are governed by an ante-nuptial contract. Marriage in community of property is not consistent with the Islamic Law of inheritance.

 

An un-Islamic Will
If a person has left a Will that contravenes the Shari’ah, it is incumbent on the heirs to redress the inconsistencies. They are obliged to forego their legal shares in favour of their Islamically determined shares.

A Gift during your Lifetime
Observing equality in parental gifts or grants to children is preferable but not binding. If a parent elects to divide his estate in his lifetime to avoid potential dispute after his death, then the lifetime transfers will be regarded as gifts or grants, in which case he should preferably observe equality.

 

Record of Liabilities and Assets
Nabî Sallallahu alayhi wa sallam has said: “It does not befit a believer who is (obliged) to make wasiyyah to spend (even) two nights without making a record thereof.”

A Muslim is obliged to keep a record of the following:
Debtors
Amanah [Items entrusted for safe-keeping]
Unfulfilled religious obligations
Creditors

Legal Requirements
The Wills Act of 1953, as amended governs the execution of the Will.
Any person of the age of 16 or over may make a Will.
No beneficiary may sign as a witness.
The testator/testatrix as well as the same witnesses who attest at the end of the Will, all being present must sign every page of the Will.

 

The Consequences of a Wrong Will
Nabî Sallallahu alayhi wa sallam has said: “A man or woman may devoutly obey Allâh for sixty years. Yet when death approaches them, they act wrongfully (when making their will). As a result the fire becomes binding upon them.”

 

May Allâh grant us the foresight to enact His Law and the humility to accept it as the ultimate. Ameen

 

 

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