Is Writing a Will Wajib In Non-Muslim Countries?

Question: Assalamu ‘alaykum. In western counties such as the United States, where Islamic inheritance laws are not implemented by the states unless written in a will, would the ruling of writing a wasiyyah be wajib or fard (as opposed to mustahabb which is mentioned in Hanafi texts) since without writing a wasiyya, we can be sure that one’s assets will not be distributed according to Islamic inheritance guidelines?

Answer:

Wa ‘alaykum assalam wa rahmatullah wa barakatuh.

I pray you are well.

What Is a Wasiyya?

In general, a bequest (wasiyya) in the Hanafi school, only relates to financial matters, such as dispensing with a third of one’s estate by giving it to people or charitable causes. This is mustahabb. Other forms of bequests can deal with appointing representatives to look after minors. [Zayla’i, Tabyin al-Haqa’iq]

When a person dies, after his funeral costs and debts are paid from his estate, all he owns becomes the property of his heirs. It is their responsibility to ensure everyone is given their right; this would be wajib for them.

If however, a country’s law prevents them from distributing it without the express permission of the deceased in a will, then making it possible for them to be able to do so would also become wajib on one before death. A legal principle states “What a wajib cannot be done without also becomes wajib.”

Therefore, it would be necessary to empower the heirs or another of authority to carry out the distribution according to the dictates of the Shari’a. If this means leaving a will then so be it.

May Allah grant you the best of both worlds.
[Shaykh] Abdul-Rahim

Checked and Approved by Shaykh Faraz Rabbani

Shaykh Abdul-Rahim Reasat began his studies in Arabic Grammar and Morphology in 2005. After graduating with a degree in English and History he moved to Damascus in 2007 where, for 18 months, he studied with many erudite scholars. In late 2008 he moved to Amman, Jordan, where he continued his studies for the next six years in Sacred Law (fiqh), legal theory (Usul al-fiqh), theology, hadith methodology, hadith commentary, and Logic. He was also given licenses of mastery in the science of Quranic recital and he was able to study an extensive curriculum of Quranic sciences, tafsir, Arabic grammar, and Arabic eloquence.