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Will Writing

A Wasiat is a declaration of a person made during his life time with respect to his property or benefit thereof, to be carried out for the purposes of charity or for any other purposes permissible by Islamic Law, after his death. The assets of Muslims who die without Wasiat shall be divided rigidly amongst their heirs in accordance with the Faraid, i.e. the Islamic Law of Inheritance.

 

Heirs are specifically identified in Islam. A spouse, parents and legitimate children (provided they are Muslims) are never excluded from a deceased’s inheritance. Grand-children, for example, are not automatically regarded as heirs and would benefit only under certain circumstances. Those not regarded as heirs in Islam include, for example, adopted children, illegitimate children and foster parents.

It is, nevertheless, enjoined in Islam, for a Muslim to write a Wasiat and to make a bequest of one-third of his assets to his loved ones , be they Muslims or not, or to charity so long as it is made in accordance with the Syariah.

Bearing in mind what the Prophet S.A.W. said, as narrated by Abdullah bin Umar that

 

“It is not permissible for any Muslim who has something to Will to stay for two nights without having his Last Will and Testament written and kept ready with him”

 

Hibah is a transfer of property without exchange of consideration with a definite proposal on the part of the person who gives the gift and acceptance on the part of the person to whom the gift is given. This is to reflect the use of “Hibah” as a mechanism to protect the rights of the children of the Settlor how low so ever. In effect, it is a gift instrument.

  • It takes effect immediately (at the time the declaration is made)
  • Only gift from parent to child is revocable
  • It is not subject to Faraid but subject to the terms of the Declaration of Hibah

 

Waqf means an irrevocable dedication, made expressly or by implication, of property or giving it away in charity for purpose of acquiring merit in the eyes of Allah.

The following hadith records the authority for the establishment of waqf:

Narrated Ibn Umar:

When ‘Umar got a piece of land in Khaibar, he came to the Prophet saying, “I have got a piece of land, better than which I have ever got. So what do you advise me regarding it?” The Prophet said, “If you wish you can keep it as an endowment to be used for charitable purposes.” So, ‘Umar gave the land in charity (i.e. as an endowment) on the condition that the land would neither be sold nor given as a present, nor bequeathed, (and its yield) would be used for the poor, the kinsmen, the emancipation of slaves, Jihad, and for guests and travellers; and its administrator could eat in a reasonable just manner, and he also could feed his friends without intending to be wealthy by its means.

Excerpt from Sahih Al-Bukhari
(Vol. IV p.27)

Waqf may be created to take effect inter vivos or only upon death through a Wasiat. Although trustees must be appointed to administer a waqf, the various Islamic Administration enactments throughout the country now mandate that only State Islamic Statutory authorities may act as such.

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