Rules of Will (Wasiyyat)
2849. A will is purported to direct that after oneĺs death, a certain task be completed, or that a portion of his property be given in ownership to someone, or that he appoints someone as guardian of his children and dependents. A person who is to give effect to a Will is called executor (Wasi).
2850. A person who wants to make a will, if he/she makes it understood by any signs it is in order, even if he/she is dumb.
2851. If a written paper is found, signed and sealed by a deceased person, and if it is known or conveyed that he wrote it as a will, it should be acted upon.
2852. A person making a will should be Baligh, but if a discerning child makes a will for good actions like building mosque or water reservoir or bridge, it is correct. Will must be made with free will and choice and the person who is making a will should not be feeble-minded in Baligh age; but his/her will is correct, especially if it is regarding good actions and charity.
2853. If a person who injures himself intentionally, or takes a poison, because of which his death becomes certain or probable, makes a will that a certain part of his property be put to some particular use, his will is not in order.
2854. If a person makes a will that something from his property will belong to someone, and if that person accepts the will, even if his acceptance took place during the lifetime of the testator, that thing will become his property after the death of the testator.
2855. When a person sees signs of approaching death in himself, he should immediately return the things held in trust by him to their owners. And if he is indebted to others, and the time for repayment of the debt has matured, he should repay the debt. And if he is not in a position to repay the debt, or the time for its repayment has not yet matured, he should make will to ensure that his creditor will be paid after his death, and take witnesses for that, but if the debt is clear and he/she insures that the heir will pay it, there is no obligation to make a will.
2856. If a person who sees signs of approaching death in himself has a debt of Khums and Zakat, or has other liabilities, and if he cannot make payment immediately, he should make a will directing payment, if he owns some property, or if he knows someone will pay on his behalf. The same rule applies, if he has obligatory Hajj on him.
2857. If a person who finds signs of approaching death in himself has lapsed (Qadha) of some prayers and fasts due to him, he should direct in his will that a person be hired and
paid from his estate for their performance. In fact, even if he does not leave any estate, but feels it probable that someone would perform them without taking any fees, it is obligatory for him to make a will in this behalf. And if he has someone like his eldest son who would perform, it is sufficient to inform him about it, and it is not obligatory to will in that respect.
2858. If a person who finds signs of impending death in himself has deposited some property with some other person, or has concealed it in some place of which his heirs are not aware, and if owing to the ignorance of the heirs their right is lost, he should inform them about it. And it is not necessary for him to appoint a guardian, or an administrator for his minor children, except when it is feared that their property may perish, or they themselves may be ruined without an administrator, in which case, he should appoint a trustworthy administrator for them.
2859. The executor (Wasi) should be sane and trustworthy. And it is necessary that the executor of a Muslim should be a Muslim, if the execution of will results in domination over heirs who are Muslim. As an obligatory precaution, Wasi should be Baligh.
2860. If a person appoints more than one executors, allowing each of them to execute the will independently, it will not be necessary that they should obtain permission from one another for the execution of the will. And if he had not given any such permission - whether he had or had not said that both of them should execute the will jointly - they should execute the will in consultation with one another. And if they are not prepared to execute the will jointly, and this unwillingness is the result of difference in determining expediency, then if their delay causes to stop executing the will, a fully competent Mujtahid may force them to accept the view of a person among them which is preferred by the Mujtahid and if they do not obey, he may appoint another person and if they do not accept, he may replace that person.
2861. If a person retracts a directive in his will, for example, if he first says that 1/3 of his property should be given to a person, and then says that it should not be given to him, the will becomes void. And if he changes his will, for example, if he appoints an administrator for his children, and then replaces him with another person, his first will becomes void, and his second will should be acted upon.
2862. If a person conducts himself in a manner which shows that he has drawn back from his will, for example, if he sells a house which he had willed to give away to someone, or appoints someone as his agent to sell it in spite of his original wish, the will becomes void.
2863. If a person makes a will that a particular thing be given away to someone, and later changes it to say that half of the same thing should be given to another person, that thing should be divided into two parts, and one part should be given to each of them.
2864. If a person who is on his death-bed bestows a part of his property as gift on a certain person, and makes a will that after his death another quantity be given to yet another person, and if both the gifts exceed one-third of his estate, and the heirs are not prepared to approve the excess, then in that case the first endowment should be given to the first beneficiary, and whatever remains from one-third should be spent according to the will.
2865. If a person makes a will that 1/3 of his property should not be sold and its income should be spent for some particular purpose, his instructions should be followed.
2866. If a person says during his terminal illness, that he owes certain amount of someone, and if he is suspected of having said that to harm his heirs, the amount specified by him should be given out of 1/3 of his property; and if he is not suspected of any such motive, or there are valid reason for debt, his admission will be valid, and the payment should be make out of his estate.
2867. When a person makes a will that something be given to another person, it is not necessary that that beneficiary should be existing at the time of the will. If, therefore, he makes a will that something be given to a child who may possibly be born of a particular wife, it is void. But if he makes a will that something be given to the child who is actually in motherĺs womb, even if it has not life, will is correct. Therefore, if it is born alive, he gets the gift and if it is a stillborn, will is void and whatever is devoted to him/her is distributed among heirs.
2868. If a person comes to know that someone has appointed him his executor, and he informs the testator that he is not prepared to perform the duties of an executor, it is not necessary for him to act as an executor after the death of the testator. But, if he does not come to know of his appointment before the death of the testator, or comes to know about it, but does not inform the testator that he is not prepared to act as an executor, he should execute the will. Also, if the executor comes to know of his appointment at a time when due to serious illness or some other hindrance, the testator cannot appoint any other executor, he should, on the basis of obligatory precaution, accept the appointment.
2869. After a testator dies, the executor cannot appoint another person to execute the will and retire himself. But, if he knows that the deceased did not mean that the executor should execute the will himself, what he wanted was only that the given work should be accomplished, he can appoint another person on his behalf.
2870. If a person appoints two persons as joint executors, and if one of them dies, or becomes insane, or an apostate, the Mujtahid will appoint another person in his place. And if both of them die, or become insane or apostates, the fully competent Mujtahid will appoint two persons in their place.
2871. If an executor alone cannot perform all the tasks laid down in the will of the deceased, even by appointing someone as his agent or by hiring someone, then the fully competent Mujtahid will appoint someone to assist him in his duties.
2872. If a quantity from the property of a dead person is lost or damaged while in the custody of the executor, and if he has been negligent in looking after it, or has gone beyond moderation, he will be responsible. For example, if the dead person had willed him to give a certain quantity to the poor of a particular town, and he took it to some other town, and in the process it has perished, he will be responsible for it. But, if he has not been negligent nor immoderate, he will not be responsible for the loss.
2873. If a person appoints someone as his executor, and says that after that executorĺs death, another person should be the executor in his place, the second executor should perform the tasks laid down in the will of the deceased, after the death of the first executor.
2874. If obligatory Hajj remained unperformed by the dead person, or debts and dues like Khums, Zakat and Mazalim (wealth wrongly appropriated) which were obligatory to pay, were not paid, they should be paid from the estate of the deceased though he may not have directed in his will for them. But, if he has specified a property for that, it should be observed and if it is not enough, the rest may be taken from other properties.
2875. If the estate of the deceased exceeds his debt and expenses for obligatory Hajj, and obligatory religious dues like Khums, Zakat and Mazalim, and if he has also willed that 1/3 or a part thereof of his property be put to a particular use, his will should be followed; and if he has not made a will, then what remains is the property of the heirs.
2876. If the disposal specified by the deceased exceeds 1/3 of his property, his will in respect of what exceeds the 1/3 of his property will be valid only if the heirs show their agreement, by words or by conduct. Their tacit approval will not suffice. And even if they give their consent after some time, it is in order. But if some heirs permit and others decline to give consent, the will is valid and binding only in respect of the shares of those who have consented.
2877. If the dispensation specified by the deceased exceeds 1/3 of his property, and his heirs give consent to that dispensation before his death, they cannot withdraw their permission after his death.
2878. If a person makes a will that Khums and Zakat, obligatory Hajj and other debts due to him should be paid, then they will be paid out of his/her own property, unless he/she puts emphasize that it should be paid out of 1/3 of his property. In this case, it will be observed but if expenses was more that that, all will be paid out of his/her total estate.
2879. If the testator has made a will to do his/her obligatory and Mustahab acts, the obligatory ones have priority and if anything remains out of the 1/3, it will be given to Mustahab affairs.
2880. If the testator has mentioned certain obligatory and Mustahab acts in an order, first the obligatory ones should be done; but if the dead person has determined an order, for obligatory ones, it should be observed.
2881. If a testator wills that his debt should be paid, and also someone should be hired for the performance of his Qadha and fasts, and also Mustahab acts should be performed, but does not direct that the expenses for those acts should be paid from 1/3 of his estate, then his debt should be paid from his estate, and if anything remains, 1/3 of it should be spent on prayers and fasts and Mustahab acts specified by him. And if that 1/3 is not sufficient, and if his heirs permit, his will should be implemented by paying from their share, and if they do not permit, the expenses of prayers and fasts should be paid from the 1/3 of his estate, and if anything remains it should be spent on the Mustahab acts specified by him.
2882. If a person claims that the deceased had willed that a certain amount should be given to him, or has determined him as guardian of children, his word will be accepted if it is certain or two Adil persons confirm his statement.
2883. If a person makes a will that something from his estate is for a particular person, and that beneficiary dies before accepting or rejecting it, his heirs can accept it as long as they do not reject the will. However, this order applies when the testator does not react his will, otherwise, the beneficiary have no right to lay claim to that thing.