Friday, April 29, 2011

Writing a Will is a MUST for the wealthy

Salam,

For those who are wealthy it is obligatory for them to write a will according to guidance prescribed in the Quran. It is a wrong attitude that most Muslims did not write a will because he thinks that the Quran has prescribed in detail those who will be the inheritance of his estate. But the Quran only shows the guidance who and how much portion is due and the actual will have to written by the testator himself according to the composition of his family who are still living. He has to have the will officially documented with the proper authority in the country he resides.

In the Quran it is stated it is obligatory for all to write a will those who have assets and since none of us know when we will leave this world it is better to write a will as early in our life as possible as the day we start earning our living and do our saving. None of the close relatives should be discriminated as the ordained portion is due to them whether we love or hate them it is a duty to include them in our will. Even if they are left aside in our will they have the right to contest it with the authority.

Men shall have a portion of what the parents and the near relatives leave, and women shall have a portion of what the parents and the near relatives leave, whether there is little or much of it; a stated portion. (Surah 4:7)

It is prescribed for you, when death approach one of you, if he leave wealth, that he bequeath unto parents and near relatives in kindness. This is a duty for all those who ward off evil. If anyone changes the bequest after hearing it, the guilt shall be on those who make the change. For Allah hears and knows (All things).
(Surah 2:180-181)

In the case where a will have not been written there is still the requirement for the testator to will it orally by getting two people to witness who are to be his beneficiaries.

O you who believe! When death approaches any of you, take witnesses among yourselves when making bequests; two just men of your own brotherhood or others from outside if you are journeying through the earth, and the chance of death befalls you (thus). If ye doubt their truth, detain them both after prayer, and let them both swear by Allah: "We wish not in this for any worldly gain, even though the (beneficiary) be our near relation: we shall hide not the evidence before Allah: if we do, then behold the sin be upon us!" (Surah 5:106)

We cannot deny that the wealth which we accumulate in this world is the bounty and grace from God and before we die God ordained us due portions should be distributed as He commanded it to be. Do not think that the wealth that we accumulated is due to our skill or our ingenuity in business, we may fall into haughtiness as that of Qarun as described in the Quran:

He said: "This has been given to me because of a certain knowledge which I have." Did he not know that Allah had destroyed, before him, (whole) generations which were superior to him in strength and greater in the amount (of riches) they had collected? But the wicked are not called (immediately) to account for their sins. (Surah 28:78)

Thus be not like Qarun who thinks the wealth he accumulated was of his own ingenuity but be humble that the wealth we gain from God we shall distributed it to those He wishes us to inherit before we die according to the guidance He prescribed in the Quran.

The Quran give a simple non complicated formula for the distribution of estates due for the beneficiaries. The portion which has been ordained in the Quran for the children, parents, wives and other near of kin is obligatory to be given to them. Only the surplus from the ordained portion if there is any is legally can be bequest to others whom we pleased. Take the example of the loner who is an orphan being raised in an orphanage who have no one as his next of kin.

Consider him as a man (or a woman) who is wealthy since he has nobody as his legal next of kin or there is no ordained portion obligatory for him to be included he can therefore make a will according to whom he pleases and the Quran allow him to do so:

To everyone We have appointed heirs of that which parents and kinsmen leave, and those with whom you have sworn compact. So give to them their share; God is witness over everything. (Surah 4:33)

Since this man has no parents or next of kin he is allowed to bequest to any one he pleases “with whom you have sworn compact” according to the Quran cover other than his kin and this can be his best friend to inherit the total amount of his estates. The friend can get 100% of the deceased estates when he dies. In his will he has to write Mr A to get 100 percent of his estates. However when he gets married he has to change his will now that his wife is entitled to ¼ portion he has to reduce the portion of his friend Mr A from 100% or 1 to ¾ because his wife has a right to his estate whether he loves her or not. The will is now officially to be rewritten before he dies with his wife to get ¼ (if it is the woman the husband gets ½ against the other free ½) as the ordained portion and the friend is to get only ¾ portions as his will. The will shall keep changing as the composition of his family changes or as he changes his mind and he is allow to change the free non ordained portion from giving it to his friend Mr A the ¾ portion back to his wife as his will but the minimum ordained portion of ¼ must be reserved to his wife.

The verse below will indicate the kind of will that is expected on the testator whose wife/husband and parent were dead and has no children (kalaalati) and the remaining kin are indicated below:

They ask thee for a legal decision. Say: Allah directs (thus) about those who leave no descendants or ascendants as heirs. If it is a man that dies, leaving a sister but no child, she shall have half the inheritance: If (such a deceased was) a woman, who left no child, Her brother takes her inheritance: If there are two sisters, they shall have two-thirds of the inheritance (between them): if there are brothers and sisters, (they share), the male having twice the share of the female. Thus doth Allah make clear to you (His law), lest ye err. And Allah hath knowledge of all things. (Surah 4:176)

In the above it can be translated when the man is still living and he has the family composition as stated in the above verse, he can take the guidance from the Quran to make his will before he dies. He can reserve what is the ordained portion he is obligatory to include and the free portion he is able to will to whoever he pleases.


When a man has only his sister living

If a man was married but his wife dies and he has only his sister still living then he should will ½ of his estates to his sister as ordained by God and the other half he has the right to will it to any one he pleases it can be his friend Mr A. In his will he should officially write as follow

Sister to get ordained portion ½ and friend Mr A get ½.of the free portion. But if he changes his mind he can shift the 1/2 of the free portion from his friend to his sister but he is not allowed to do the other way round because the sister’s portion is ordained portion by God but not the friends’.

When a woman has only her brother living

If a woman was married and has no child and she has only her brother living then before she dies she has to write a will giving all her estate to her brother as this is ordained portion by God. In this case she is not allowed to will it to her friend as there is no extra or free portion from the ordained portion.

When a woman has only her 2 sisters living

In this case she has to will 2/3 of her estate to her sisters as ordained portion and 1/3 of the extra or free non ordained portion to any body he pleases.



When a woman has only brothers and sisters living

In this case she has to will 2/3 of her estates to the brothers and sisters to share among themselves with the male to get twice the share of the females. The remaining 1/3 she can will it to any body she pleases. The non ordained portion is her right to give it any one she pleases.

With the ordained portion already fixed as shown in the Surah 4:176 a will can easily be written when a man or a woman is left with a family composition as depicted in the above examples, the will must show the ordained portion going to the next of kin and the free portion or the extra if any may go to others than closed blood relatives. In the above examples it can be interchanged whether it is a man or a woman writing the will.

The verse below will indicate the kind of will that is expected on the testator whose wife/husband is still alive but the parent were dead and has no children and the remaining kin are indicated below:

In what your wives leave, your share is a half, if they leave no child; but if they leave a child, ye get a fourth; after payment of legacies and debts. In what ye leave, their share is a fourth, if ye leave no child; but if ye leave a child, they get an eighth; after payment of legacies and debts. If the man or woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third; after payment of legacies and debts; so that no loss is caused (to any one). Thus is it ordained by Allah; and Allah is All-knowing, Most Forbearing. (Surah 4:12)

When a woman has only her husband living

When she write her will she must include her husband an ordained portion of ½ her estates and the other free ½ portion she is allowed to will it to any friend she wish.

When a man has only his wife living

When he writes his will he must include his wife an ordained portion of ¼ of his estates and he can will it to any body he pleases the free portion of ¾ of his estates.

When a woman has only her husband and a sister living (same if no sister but a brother living)

When she writes her will she must include her husband an ordained portion ½, the sister an ordained portion 1/6 (same if a brother) and the balance free portion of 1/3 she can will it to any one she pleases.
(If it is a man who writes the will, wife to get ¼ (3/12) and sister to get 1/6 (2/12) ordained portion and the free portion 7/12 is available for him to will it to who ever he pleases)

When a woman has only her husband and a sister and a brother living

When she writes her will she must include her husband an ordained portion of ½ (3/6), the sister and the brother to share an ordained portion of 1/3 (or 2/6 the male get 2 portion of the female) and the 1/6 free portion she can will it to any one she pleases.

[If it is a man, wife to get 1/4 (3/12) while the sister and the brother to share a 1/3 (4/12) ordained portion the balance free portion of 5/12 to whom he pleases]

However the situation of writing a will shall be quite different when the family composition is bigger with the wife/husband, the children and the parents are still living. With this composition the brothers and the sisters has no legal claim on the estates. The Quran stated the ordained portion as follows:

Allah (thus) directs you as regards your Children's (Inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two-thirds of the inheritance; if only one, her share is a half. For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased Left brothers (or sisters) the mother has a sixth. (The distribution in all cases ('s) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah; and Allah is All-knowing, Al-wise. (Surah 4:11)


When a man has only his wife and parent still living

When he writes his will, the wife is to get ¼, the mother will get 1/3 and the father to get 1/6 ordained portion and the ¼ balance free portion he can will it to any one he pleases.

When a man has his wife and parent and his brothers and sisters still living

Since the brothers and the sisters are still living the ordained portion of the mother from 1/3 is reduced to 1/6 maybe because they can participate to take care of the mother too.

His will shall consist of his wife to get ¼ and the mother to get 1/6 of the ordained portion and the balance ½ free portion can be bequest to any one he pleases.

When a man has his wife and his child living

He has to reduced the ordained portion of his wife from ¼ to 1/8 and his child (male or female) get ½ and the balance free portion of 3/8 he can will it to whom he pleases.


When a man has his wife and his children more than two living

He shall will for the wife to get 1/8 (3/24) and the children 2/3 (or 16/24 the male get two shares than the female) and the balance free portion of 5/24 he can bequest to any one he pleases.

So far all the ordained portion in all the above family compositions there is some leeway for a free portion allowing the testator to will it to some one he pleases but the following family composition not only disallow the testator to will it to some one he pleases but he is enforced to reduce some ordained portion from the beneficiaries because if all of them stick to their portions, their claim will exceed the asset as show n below


When a man has his wife, his children more than two and both his parent still living

What is indicated in the above Surah 4:11 is that by not writing a will if he leaves behind a wife, children more than two and both his parent are still living, the total claim will exceed more than one which means there is more claims than there is asset. When God made it compulsory in the Quran to write a will there is consequences for those who did not write their will be it in this world or in the next world.

Without an official will written by the testator, what the Quran shows is that the beneficiaries can claim the ordained portion as follow

The wife can claim ordained portion of 1/8 or 3/24
The children can claim an ordained portion of 2/3 or 16/24
The parent can claim an ordained portion (1/6 each) 1/8 or 8/24
--------
Total Claim 27/24
--------

The total claim of 1(one) 3/24 cannot equal to the total asset of 1, there will be an over claim of 3/24. Or to put it in term of percentage the claim is 112.5 % over an asset of 100% which mean there is an extra claim of 12.5%.

Here it is glaring that without an official will if all the above beneficiaries stick to their claim of their ordained portion they can never find a solution and that is the reason why many Muslims were unable to solve their inheritance problem simply because there is no will written from whose portion it should be reduced and the authorities have no right to take out the 3/24 or 12.5% from any of the beneficiary because it is all ordained portion in the Quran.

Thus God has made it in such a way that the only solution to avoid this complication is to write a will before we die and the testator is the only one responsible to reduce this amount of 3/24 or 12.5 % when he writes his will. If God is the One Who command we are to write a will He will certainly give us a way how to settle the ordained portion if we are to have a family unit on that composition. The distribution of estates in the Quran

The wife ordained portion is 1/8 or 3/24
The children ordained portion is 2/3 or 16/24
The parent ordained portion (1/6 each) 1/3 or 8/24
--------
Total Claim 27/24 extra 3/24
--------

If the testator is to make his own decision there are many options he can do to streamline the total fractions above to equal 1. See table below

1. He can take off the whole 1/8 or 3/24 from the wife who will get nothing

The children get 16/24 and the parent 8/24 this will add to 24/24 equal 1.

2. He can take off the 3/24 from the children, they get less

The wife gets 3/24, the children gets 13/24 and the parents gets 8/24 and this will adds to 24/24.

3. He can take off the 3/24 from the parent, they get less

The wife gets 3/24, the children get 16/24 and the parent gets 5/24 and this will add up to 24/24.

But by doing one of the above it will expose the testator preference of his love ones, which means if he takes off from his wife the 1/8 or 3/24 unconsciously he loves more of his children and his parent. Should he decides to take off from his children 3/24 it means he loves more of his parents and if he takes off 3/24 from his parents he is showing that he is nearer and loves his children more than the parents.

However God in the Quran want us to make a decision based on His guidance and He said in the Surah 4:11

…….Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah; and Allah is All-knowing, Al-wise. (Surah 4:11)

The tip above send a straight message with regards of our children and our parent that since we do not know who are nearest in benefit between them to us but we are responsible to make a decision to reduce the ordained 3/24 from the total claimant of 27/24 in our will and as God mentioned the children and parent, it means the wife portion of 3/24 is to remain intact.

To be fair if God says that we do not know who are nearest to us in benefit between our children and our parent the best solution is to take off from them half of 3/24 (or 6/48) and the formula will be as below and it will certainly be with God’s Blessing

The original ordained portion in the Quran before writing of a will

Wife to get 3/24 or 6/48,
Children to get 16/24 or 32/48
Parent 8/24 or 16/48 Total 54/48 an over claim of 6/48

The ordained portion after officially writing a will before dying

Wife to get 6/48
Children 32/48 (minus 3/48) 29/48
Parent 16/48 (minus 3/48) 13/48 Total 48/48 equal 1

(the same exercise as above if woman is the testator except her husband get ¼)

What can be observed from the law of inheritance in the Quran is that blood relation is important and all relatives mentioned that make up the composition of the family unit of their ordained portion must be reserved for them and only if there is free portion left can a person will it to whom he pleases. In the case where the composition of the wife, the children and the parent are still living we can conclude that it is our will that it be reduced as God wants us to write it as He guides us in the Quran.

This is the Limits (Hudud) set by God and those who follow it will be rewarded in heavens and those who disobey the limit above will be admitted in the fire.

Those are limits set by Allah: those who obey Allah and His Messenger will be admitted to Gardens with rivers flowing beneath, to abide therein (for ever) and that will be the supreme achievement. But those who disobey Allah and His Messenger and transgress His limits will be admitted to a Fire, to abide therein: And they shall have a humiliating punishment. (Surah 4:13-14)

Asar

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