A will is a testament made by a person – the testator – during his life about what he desires after his death.
There are two types of wills:
(1) The will for the assignment of ownership: this is when the person transfers an item in his estate to the ownership of another person or cause, so it is a transfer of ownership subject to his death.
(1) The will for the assignment of guardianship: this is when he appoints a particular person to act as the guardian over his young children, or over a part of his estate, giving him the right of implementing what he has willed.
Ruling 584: It is sufficient for a will to be effective that it is expressed verbally, by conduct, by writing, by sign, etc., as long as it is understood that he wishes it to be his will.
Ruling 585: It is not necessary for a beneficiary of a will for the assignment of ownership to accept it. As for the appointee in the will for the assignment of guardianship, he is not required to execute what has been willed, especially if he declined the nomination during the testator’s lifetime. However, if he makes a will that a particular person is to perform the funeral prayers for him, or any other of the obligatory rites of the funeral, then as an obligatory precaution he should fulfil this with the permission of the deceased’s guardian, unless this causes hardship for him. If the nominee is the son, and the nominator is his father, then he cannot refuse and decline.
Conditions for the Testator, Beneficiary and Appointee
Ruling 586: The testator should be adult – as defined by the Sharia – although if he is at least ten years old and he apprehends the will and his will is for good causes and deeds, it is valid. In fact, as an obligatory precaution, a seven-year-old’s will also be valid if he wills that a small amount go to such good causes.
Ruling 587: The testator should also be sane and he should have made the will through his own choice.
He should not have killed himself, in which case his will will not be valid in respect to his property and money; as for his will in respect to other issues such as the guardianship of his children, it is not effective based on an obligatory precaution.
The will of a foolish person is not valid particularly in respect to matters pertaining to property and money, unless it is for the benefit of good causes and deeds.
Ruling 588: The beneficiary or the appointee of the will – whether it is for the assignment of ownership or assignment of guardianship, respectively – should not be non-existent. If it is in favour of a child in the womb, it is valid provided that the child is born alive and cries after his birth. The will is valid if it is in favour of an heir, or a Muslim of other sects, or a non-Muslim, as long as this does not consist of propagation of falsehood; otherwise, such a will is invalid.
Ruling 589: If the beneficiary or appointee dies, his heir will take his place, except if he died before the testator who reverted from his will and annulled it.
Conditions for the Executor of the Will
The executor of the will (the wasi) is the person who is entrusted to implement the will, and the executor of a will may be one person or more.
Ruling 590: The wasi should be adult and sane.
Ruling 591: The executor is a custodian who is not liable unless he acts with transgression or negligence.
The Subject of the Will
In a will for the assignment of ownership, the subject of the will is any property which has a considerable lawful benefit, whether it exists, or currently does not exist but will probably do so later, or it is a right which is capable of being transferred.
In a will for the assignment of guardianship, the subject of the will is the guardianship over his non-adult children, or any lawful dealing and disposition from the estate, such as if he wanted grains that he owned to be used to feed the pigeons of the shrine of Imam Ali (peace be upon him), or if he wanted to hire somebody to pray or undertake the pilgrimage on his behalf.
Ruling 592: The deceased cannot make a will on more than a third of his estate, and it is better to restrict it to a quarter of it, rather, a fifth of it. However, if he makes a will which requires more than a third of his estate, the will on the part that exceeds the third will be effective only if the inheritors agree. If only some of them agree to it, the part of the will which exceeds the third will be executed from the shares of the agreeable inheritors.
Ruling 593: The third of the estate will be calculated after deducting the expenses from the main estate, like the expenses on the funeral rites, arranging the pilgrimage on his behalf if it was obligatory on him, any khums and zakah payments still due, repayment of debts, etc.
Ruling 594: If the testator specifies the third of his estate to be a particular property, then that is what it will be. If he delegates the specification of the third from his estate to the executor, then it will be regarded to be what the executor decides. In any other case – when neither the testator not the executor has specified the third of the estate – it will be considered to be a third of the total undivided estate.
Other Rulings about the Will
Ruling 595: The testator can annul his will during his life, and if he annuls a part of it, only that part of it will be void. Annulment of the will by the testator occurs by any words or conduct that indicates it. .
Ruling 596: If the testator makes a will for a particular matter, and then subsequently makes a will for another matter which contradicts the first, this will be regarded as an annulment of the first will, and the second will will be effective.
Ruling 597: If the testator makes numerous wills – or a will of numerous matters – not consisting of any contradiction, but the funds from the estate cannot cover all of them, then if all the matters are obligatory or all of them are recommended, the shortfall will be spread proportionately on all of it, as long as he did not imply any priorities amongst them. If some matters are obligatory and some are recommended, then the recommended matters only will be subjected to the shortfall, and all of the obligatory matters will be acted upon in full.
Ruling 598: If the testator makes a will for the payment of obligatory financial dues from the third of his estate, it will be done so, but if the third does not cover it, the remaining dues will be covered from the main estate.
Ruling 599: Wills on matters that are unlawful will not be effective, but this does not mean that it will be completely void; rather it will become obligatory to spend that part of the estate on good causes.
The Establishing of a Will
Ruling 600: If the existence of a will is doubted, and there is no proof to affirm it, it will be regarded as not existing.
Ruling 601: A will’s existence will be established by one of the following ways:
(1) Sure knowledge of it;
(2) Admission by the testator;
(3) The testimony of two adil witnesses;
(4) Admission of the inheritors, if the subject of the will is financial, rather than like the appointment of a guardian over his children, for example, in which case their admission will not be regarded as proof.
Ruling 602: The annulment of a will will be established by any of the ways mentioned above too, except for the admission of the inheritors if they are not adil.
Ruling 603: The will for the assignment of ownership in particular will be established also by the testimony of one adil male witness and two adil female witnesses. In fact, the testimony of one adil male witness or two adil female witnesses is sufficient provided that the beneficiary swears to this before the hakim shar’i.
Ruling 604: The will for the assignment of ownership will be established in its entirety by the testimony of a four adil female witnesses. Three-quarters of it will be established by the testimony of three adil female witnesses. Half of it will be established by two adil female witnesses. A quarter of it will be established by one adil female witness. The same will apply to the will for the assignment of guardianship, provided that it can be divided as so, unlike the guardianship of young children for example.
Ruling 605: Every human has the right to deal with his property during his lifetime with lawful fully-implemented disposals, like the waiving of a debt owed to him, or the giving away of something for free, or the like, whether he is on his death bed or not. However, he may not make his dealings, whatever they may be, subject to the condition of his death, except in a will.