In South Africa, a will is a legal document that outlines how a person’s assets and possessions will be distributed after their death. While not mandatory, having a valid will is strongly recommended to ensure your wishes are carried out and to avoid potential disputes among family members.
Dying without a will—known as dying intestate—can lead to numerous complications and is governed by the Intestate Succession Act, which dictates how your estate will be distributed, often in a manner you may not have intended.
The importance of making a will (wasiyyah) in Islam is a matter of profound significance. It is not merely a legal document but a religious and moral obligation to ensure one’s final affairs are in order and that wealth is distributed justly, in accordance with the divine law of Allah (SWT).
Why You Need an Islamic Will (Wasiyyah)
Drafting an Islamic will provides peace of mind and ensures that the wealth you leave behind is a source of benefit for you, rather than a cause for dispute. The Prophet Muhammad (peace be upon him) said:
“It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will.” (Sahih Al-Bukhari)
A wasiyyah helps to:
- Execute Bequests: It allows you to make specific bequests (wasiyyah) of up to one-third of your estate to non-heirs or charitable causes. This is your opportunity to give sadaqah jariyah (ongoing charity) that will continue to benefit you in the hereafter.
- Appoint a Wasi (Executor): You can select a trustworthy and pious individual to manage the administration of your estate and ensure the proper settlement of your affairs.
- Nominate Guardians: For minor children, you can appoint a suitable guardian who will care for them and their interests after your death.
- Ensure Proper Distribution: It ensures the lawful and just distribution of your estate, minimizing family disputes and upholding the command of Allah (SWT).
The Islamic Law of Inheritance (Fara’id)
In contrast to South African common law, which allows a person to choose their heirs, Islamic inheritance is governed by divine law (Shari’ah) and is known as Fara’id. The shares of the primary heirs are fixed and pre-determined by Allah (SWT) in the Qur’an. A Muslim cannot use their will to alter these fixed shares or to disinherit a legal heir. A bequest (wasiyyah) to a legal heir is strictly prohibited unless all other heirs consent after the death of the deceased.
The distribution of a deceased person’s estate in Islam follows a strict order of priority:
- Funeral Expenses: All costs related to the burial must be paid first.
- Payment of Debts: All outstanding debts of the deceased must be settled.
- Execution of the Will (Wasiyyah): Up to one-third of the remaining estate may be distributed according to the deceased’s will for bequests to non-heirs or charity.
- Distribution of the Remainder: The remaining estate (at least two-thirds) is then distributed among the legal heirs according to the fixed shares outlined in the Qur’an and Sunnah.
This divinely-ordained system ensures fairness and justice, with specific shares for heirs such as the spouse, parents, and children, as well as a defined order for residuary heirs (‘Asabat). By writing a will that adheres to these principles and the legal requirements of South Africa, you fulfill your religious duty and ensure your legacy is managed in the most righteous manner.
Islamic Wills (Wasiyyah) and South African Law
In South Africa, the Wills Act of 1953 governs the legal requirements for a valid will, such as it being in writing, signed by the testator, and witnessed by two competent witnesses. Islamic wills, or wasiyyah, have specific principles and rules of inheritance derived from the Qur’an and Sunnah.
After death, the administration of the estate is governed by the Administration of Estates Act 65 of 1965. This Act outlines the process for appointing an executor, managing assets and liabilities, and distributing the estate. It also requires the executor to submit a liquidation and distribution account to the Master of the High Court for approval, ensuring the process is legally sound.
A Muslim can draft a will that adheres to both their religious beliefs and the requirements of the Wills Act. The will can specify the distribution of the estate according to Sharia law, and if the beneficiaries and heirs agree to the terms, it is generally accepted and respected by the South African courts. However, certain aspects, particularly regarding bequests outside of the prescribed shares (Fara’id), may still be subject to South African law and potential challenges if they disinherit a direct heir without their consent.
A Few Words of Wisdom
In Islam, the importance of making a will is emphasized, as it is considered a religious obligation to ensure one’s final wishes are known and their affairs are in order. The Prophet Muhammad (peace be upon him) said:
- “It is the duty of a Muslim who has anything to bequest not to let two nights pass without writing a will.” (Sahih Al-Bukhari)
- “A man may do good deeds for seventy years, and then, if he acts unjustly in his will, the wickedness of his will is sealed upon him, and he enters the Fire.” (Ibn Majah)
Contact our office today and schedule your consultation. We would be delighted to be able to assist you in your estate planning and the drafting of your will.
Leave a Reply