In Malaysia, the mechanics of a Wasiat, like all other Syariah matters, is governed by the State. For purposes of this article, reference will be made to the Muslim Wills (Selangor) Enactment 1999 from the State of Selangor ("the Selangor Enactment").

Let's begin with this scenario:

Background: Ali and Aminah are a Muslim couple living together in Subang Jaya with their three children: a 24-year-old son, 15-year-old daughter and an 8-year-old daughter. Ali and Aminah's parents are still alive, but their respective parents are not on good terms with each other. Ali has two elder brothers and one younger sister, but Aminah is a single child.

Ali and Aminah jointly own a property in Subang Jaya, and Ali has one property in Petaling Jaya registered in his name. Both properties are charged to a bank and Ali is the borrower. Further, Ali has one Volvo car registered in his name, two bank accounts and holds shares in a private listed company in Malaysia.

Current situation: Ali is a frontline doctor who has to work during this Movement Control Order ("MCO") at one of the government hospitals. One day, before he left for work, he told his wife, Aminah, "Dearest wife, in case anything happens to me, please make sure you transfer the property in Petaling Jaya to our two daughters when they turn the age of 18. The rest of my properties, please keep it with you." On that same fateful day, Ali met with an accident on his journey to work, and thereafter, he passed away.

More often than not, this is the scenario in a Muslim family. Ali, without proper guidance, knowledge and understanding of a Muslim Will, or also known as a Wasiat, had given his instructions to Aminah on the distribution of his properties. The question now is: whether Aminah can proceed to transfer Ali's properties in the manner she was instructed to?

For the question to be answered, the definition of a Wasiat and the mechanics that make a Wasiat valid in Malaysia must first be considered.

Wasiat, in its Arabic translation, means "wassa", which is to connect, to give, to deliver, or to promise the estate of the deceased. This definition suggests that a Wasiat works as a tool of promise for the deliverance of the estate to the persons named in the Wasiat.

In the Selangor Enactment, a Wasiat is defined in Section 5, which reflects that a "will" means an iqrar (promise) made by a person during his lifetime with respect to his property or benefit thereof, to be carried out for the purposes of charity or any other purposes permissible by the Islamic Law, after his death. "

Through this definition, a Wasiat is done by a person who is still alive, instructing or giving instructions towards the distribution of the properties in his name or other actions to be done, to other people named, whether for charity or other purposes, and which shall take effect upon the person's death.

Based on the above definition and relating to the given scenario, it is unclear as to whether Ali has drawn up an effective Wasiat. Accordingly, the rukun or also known as the terms to make a Wasiat valid, will also have to be considered. In Syariah, there are four rukun to a Wasiat. These rukun are:-

  • The person who is giving the instructions - "The Testator"
  • The person who is receiving property from the Testator - "The Beneficiary"
  • Property of the testator - "The Estate"
  • Sighah - "The Offer & Acceptance"

The Testator

The Testator is defined as a person who has acquired the age of 18, is not of unsound mind, is of free will and without any coercion, and is not prohibited from administering his property. As this is an Islamic Law, the person must be a Muslim. However, there are exceptions and other situations that may allow the Wasiat to be valid even if the Testator does not meet the requirements of the said definition.

Sections 6(2) to Section 6(4) of the Selangor Enactment allow a situation whereby the Testator may not be competent, ill or facing with the fatal disease, i.e. marad al-maut1. The three subsections' exceptions are as follows:-

  • Section 6(2) - incompetent Testator, his Wasiat is not valid except with the consent and authorization of the court;
  • Section 6(3) - an ill Testator must be of sound mind, good memory and understands what he is doing when signing the Wasiat;
  • Section 6(4) - a Testator facing a fatal disease, marad al-maut, the Wasiat shall not be more than 1/3 of his property. If there is an excess of the 1/3 of his property, it will not be distributed except with the consent of the heirs.

The Testator may revoke his Wasiat in accordance with Section 15 of the Selangor Enactment, whereby the Testator either revokes wholly or in part expressly or impliedly, or the Testator has another Wasiat that overrides the said Wasiat. A Wasiat is deemed to be revoked in situations where the Testator conducts any action or creates situations which reflect that he revokes his Wasiat, or when the Testator uses up all his properties that are mentioned in the Wasiat.

The Beneficiary

In the Selangor Enactment, a beneficiary is defined in Section 7 as a person who is known, competent to own property, and also must be in existence during the signing of the Wasiat if such beneficiary is specified. However, a beneficiary does not necessarily need to be in existence during the signing of the Wasiat or death of the Testator if the beneficiary is not specified. Furthermore, in accordance with Section 8 of the Selangor Enactment, a Beneficiary can be a place of worship or a welfare institution.

It should be noted that a Beneficiary is not a rightful heir to the Testator. A rightful heir is a person who is named in the Faraid computation of the distribution of an Estate. In situations where the named Beneficiary is a rightful heir, the Wasiat is invalid unless it is agreed to by all the other rightful heirs of the distribution.

However, in the event a Beneficiary causes the death of the Testator, whether directly or indirectly, a Wasiat to the Beneficiary is invalidated.

There are many other examples2 of a Beneficiary of a Wasiat. Nevertheless, for the purpose of understanding the term "Beneficiary", Sections 7 and 8 of the Selangor Enactment shall suffice.

The Estate

For a Wasiat to be valid, the Estate of the Testator must also fit the description in the Selangor Enactment. The said description is found in Section 9, which is summarized as follows:

  1. the Estate can be inherited or subject to a valid contract during the life of the Testator;
  2. the Estate has a value;
  3. the Estate is transferable to the Beneficiary after the death of the Testator;
  4. the Estate is in existence upon Testator's death; and
  5. the Estate or subject of the Wasiat is permissible and not prohibited (haram), maksiat3 or a bidaah4.

Furthermore, in a Wasiat, there is a limit to the bequest of the Estate. In Section 26 of the Selangor Enactment, the limit to a non-heir, i.e. the Beneficiary, is one-third of the Estate of the Testator. This one-third of the Estate is a computation after the payment of debts. However, in practice, it is allowed to leave an Estate more than one-third of the Testator's Estate subject to the consent of all the rightful heirs for such distribution.

The Offer and Acceptance

The fourth rukun, known as the Sighah, is an action from the moment of the life of the Testator, i.e. when a document or an instruction to be carried out is drawn up as an "offer", and the death of the Testator shall be the "acceptance".

A form of the "offer" is explained in Section 3 of the Selangor Enactment, whereby a Wasiat can be made out in writing, orally or even in sign language. For an oral or sign-language Wasiat to take effect, two competent witnesses under the Islamic Law are required to be present when such Wasiat is made.

Conclusion

A Wasiat is a document or an instruction through oral or signage by a Muslim which allows him/her to bequeath one-third of his/her properties to beneficiaries who are not rightful heirs. Aside from property, a testator may leave instructions to the wasi to do certain acts upon the testator's demise.

Going back to the scenario of Ali, a Testator who left an oral Wasiat to his wife. However, the validity can be challenged by the rightful heir, i.e. his parents, as there were no witnesses to the oral Wasiat and the portion of the distribution is more than one-third to the beneficiaries. Additionally, the beneficiaries named by the Testator are rightful heirs.

The understanding of a Wasiat in terms of Islamic Law and the existing law in Malaysia must be made apparent to curb the inability to distribute the estate of the deceased. Further, by having an effective Wasiat, the appointed executors would be able to distribute the properties properly to the named beneficiaries. This would save time, emotional distress between family members and beneficiaries and the cost of distributing the properties.

If Ali had sought proper advice on estate planning, he would have been able to manage his properties and discuss with the rightful heirs on the distribution of his estate. Alternatively, he could have repurposed his properties to be given as a gift (Hibah) during his lifetime to his wife and children.

This article is intended to explain the meaning and mechanics of a Wasiat in Malaysia. For more information, kindly click on this link to be redirected to an FAQ supporting this article.

Footnotes

1. Marad al maut is defined in Section 2 of the Selangor Enactment as a fatal disease that fulfils four conditions:-

  1. the disease is resulting in death. There is no cure to the illness.;
  2. the disease causes fear of death in the mind of the Testator that affects the soundness of mind;
  3. there are external signs showing that the disease is a serious disease, and
  4. the disease is ongoing and continuous for a period of less than a year.

2. Part VI in the Selangor Enactment, covers the beneficiary to non-existing, existing and unborn child.

3. maksiat is an action that is wrong in the Islamic Law. For example, to state in Wasiat that another man, who is not part of the family, but a friend, may stay under one roof with your wife and kids. The wrong action, maksiat that may surface is the fornication of your wife and your friend as they are living under the same roof.

4. bidaah is a creation of an action that is not within the Islamic Law. For example, to state in the Wasiat to leave a part of your estate to a company that mainly does research to create humans or bring people back from the dead.

Originally published 9 April, 2020

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.