The Majlis Archive

Death and Wills The Majlis Vol 24 No 11, p.11

Are the following provisions in a Will valid according to the Shariah?

Question

Are the following provisions in a Will valid according to the Shariah? "I hereby direct that any inheritance accruing to a minor child in terms hereof shall not be paid into the Guardians Fund but shall be held intrust by my said executors and administrators until the said minor attains the age of 25 (Twenty Five), in which event my said executors and administrators shall pay over to said minor his/her inheritance. 12. POWERS OF MY EXECUTORS AND ADMINISTRATORS For the purpose of winding-up my estate and for the benefit of my heirs and beneficiaries, I hereby confer inter alia, the following powers upon my executors and administrators:- 12.1 to sell, lease or alienate any assets of whatsoever nature whether movable or immovable, whether by public auction or by private treaty in their sole discretion for the benefit of the beneficiaries; 12.2 to make interim payments for the maintenance and support of any beneficiary "on account" until the winding-up of my estate is completed and the estate is properly distributed; 12.3 to continue any business carried on by me for the period as from the date of my death until the estate accounts are approved without objection and the estate is distributed to the entitled beneficiaries in accordance with the provisions hereof."

Answer

(1) The first provision is haraam in that the inheritance of the heirs is denied to them before the age of 25. On buloogh, the inheritance has to be handed to the heirs. Only if an heir is mentally retarded, a drug addict and incapable of handling his funds correctly, may the inheritance be withheld, and a curator appointed to attend to the affairs of the moron until he attains rushd.

(2) Provisions 12.1 and 12.3 are not permissible. These provisions usurp the rights of the heirs and deny them possession of their inheritance. Furthermore, the executor's only obligation is to ensure that the estate is distributed in terms of the Shariah. He has no right of alienating any of the assets of the heirs in any way whatsoever. The right and discretion conferred to him by the deceased are haraam and invalid.

(3) Provision 12.2 is permissible since an heir may be in real need prior to the distribution having been effected. In this case an advance will be made to the heir against his share of the inheritance.

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Published in
The Majlis Vol 24 No 11
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11

Appears under Provisions of Will (approximate).

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