2758. The last will is a request by a person for certain tasks to be performed for him after his death, or a statement that after his death part of his property becomes the property of someone else, or that ownership of his property be granted to someone else, or that it be dedicated or used for charitable and good causes. It (the last will) is also inclusive of his
2759. If a person, who is unable to speak, conveys his intentions by hand signing, he may make a will for any task. In fact, even if a person who is able to speak, conveys his will by hand signing in a manner that conveys his intention, it too will be valid.
2760. If a written statement is located with the signature or stamp of the deceased, then in the event that it conveys his intention, and it is known that it was written to convey his last will, they must act according to its dictates.
2761. The person making the will must be sane, and must not have been compelled to it. The last will of a ten year old child, given that he is a discerning child, and his will is acceptable by rational people, is sanctioned with respect to one-third of his wealth for his relatives and for charitable causes. Obligatory precaution dictates that one should act according to the last will of a seven year old discerning boy, with respect to a small amount of his wealth in a use that is appropriate. The last will of a feeble-minded person in cases which necessitate the disposal of his wealth is not sanctioned.
2762. If a person injures himself with the intention of committing suicide, or consumes poison for the same reason, causing him to die, his last will with respect to his wealth is not valid. However, if the last will is made before such an act, it will be valid.
2763. If a person makes a will that something from his wealth should be given to another individual then, in the event that the latter accepts it, even though the acceptance may occur during the lifetime of the person making the will, the individual will become the owner of the item upon his death. In fact, the apparent view is that the latter’s acceptance is not consequential…
2764. Whenever a person notices the signs of approaching death in himself, he must act according to article 2395 with respect people’s trusts. If he is indebted to someone, and the due date for repaying the debt has arrived, and the creditor demands it, he must pay him. If however he is unable to pay him, or the due date has not yet arrived, or the creditor is not demanding it, then the debtor must be confident that the debt will be paid for, even if he has to mention it in his will and obtain someone to witness it.
2765. If a person notices the signs of approaching death in himself, but is indebted khums, Zak¡t or ma¤¡lim, and is unable to pay it off immediately, then, in the event that he owns some property himself, or entertains the possibility that someone else may pay for it, he must mention it in his will. The same will apply if Hajj is obligatory on him.
2766. If a person notices the signs of approaching death in himself, and knows that he owes some qa¤¡ prayers and fasts, he must mention it in his will. For example, he may mention that his wealth be used to hire someone to perform them. If he does not own any wealth, but entertains the possibility that someone may perform it free of charge, again it will be necessary for him to mention it in his will. If however, the qa¤¡ of his prayers or fasts are obligatory on his eldest son, in the manner elaborated in article 1398, he must inform his son of it.
2767. If a person notices the signs of approaching death in himself, and has deposited some property with someone, or has concealed it in an area which his heirs are unaware of, then in the event that their unawareness will result in a violation of their rights, he must inform them of it.
It is not mandatory that he appoint a caretaker for his minor children. However in the event that their property will perish in the absence of a caretaker, or they themselves will be ruined, he must appoint a trustworthy caretaker for them.
2768. The executor must be sane, and the more precautious view is that he should also be b¡ligh. However, there is no problem if he (a non-b¡ligh) is supplemented to a b¡ligh executor, so that he may assist him upon becoming b¡ligh.
The executor of a Muslim must be a Muslim in the event that it results in giving him authority over another Muslim, such as granting him an authority over his minor children.
The executor must also be trustworthy in matters that do not pertain to the testator, such as fulfilling the obligatory dues, disposing of the property of minors, and any similar matter. However, in matters that pertain to the testator himself, other than the obligatory duties, such as the case where the testator makes a will that one-third of his estate should be used in charitable causes, it is not mandatory for the executor to be trustworthy.
2769. If a person appoints a number of executors for himself, and has specified that each of them may independently act upon his will, it will not be necessary for them to seek each other’s consent in executing the will. However, if he has not consented to it, regardless of whether he has stated that they should jointly execute the will, or has not stated so, they should execute the will in consultation with each other.
Hence if they are not willing to jointly execute the will without an excuse validated by the shari’a, the ¦¡kim al-shar’iyy may compel them to do so. However, if they fail to comply, or have an excuse that is validated by the shari’a, the ¦¡kim al-shar’iyy may appoint another person in place of one of them.
2770. If a person reverts from his will, it becomes void; for example, if he initially states that one-third of his property should be given to someone, but later states that it should not be given to him. If he makes a change to his will, the initial will becomes void, and his second will should be acted upon. For example, if a person appoints a caretaker for his children, but later appoints someone else instead of him.
2771. If a person does something that conveys that he has reverted from his initial will, or is contradictory to his will, it will become void.
2772. If a person specifies in his will that a particular thing be given to someone, but later specifies that half of it be given to someone else, then the item must be split into two halves, and each person should be given one of the halves.
2773. If a person gifts a part of his wealth to someone during the period of his terminal illness, and also makes a will that after his death, a part of his wealth should also be given to someone else, then the wealth that he gifted should be withdrawn from his entire estate, as elaborated in article 2308. However, the property that was mentioned in his will should be withdrawn from one-third of his estate.
2774. If a person specifies in his will that a third of his property should not be sold, and all profits accrued from it should be used for a specific purpose, the will should be executed according to his request.
2775. If a person states during his terminal illness that he is indebted to someone, and he is accused of stating so to inflict a loss on his heirs, then the specified amount should be given from one-third of his wealth. However, if he is not accused of it, his confession will be sanctioned, and the amount should be paid from his original estate.
2776. The beneficiary of a will does not need to be existent at the time of making the will. Hence, if a person specifies in a will that an item be given to a child that may possibly be born to a particular wife, then if the child is born after the death of the testator, the item must be given to him. If however he is not born, then if it is determined through the will of the deceased or by means of other qualifiers that the testator wished for the property to be used for another purpose in the event that the child is not born, then it should be executed according to his will. If this cannot be determined, the will is rendered void, and the property will be inherited by his heirs.
If a person specifies in his will that a part of his wealth be given to a particular person, then if the beneficiary is alive at the time of the testator’s death, it will be valid. If, however, he is not alive, it will be invalid. In this case, the wealth marked for the beneficiary will be inherited by the heirs of the testator.
2777. If a person comes to know that someone has appointed him as his executor (for a task other than his last rituals, the precepts of which were elaborated in article 555), then if he informs that testator that he is unwilling to execute his will, then he will not have to execute his will after his death. However, if he does not realize before the death of the testator that he has been appointed as his executor, or realizes so but fails to inform him that he is unwilling to execute his will, then if it does not entail hardship, the appointed person should execute his will.
If the executor comes to realize this responsibility whilst the testator is alive, but at a time that the testator is unable to appoint another executor due to the severity of his illness or for any other reason, then obligatory precaution dictates that he accept the will.
2778. If the testator passes away, the executor cannot appoint another person to execute the will and excuse himself from it. However, if he knows that the testator did not intend that the executor himself perform the task, rather that the task be performed, then the executor may deputize another person on his behalf.
2779. If a person jointly appoints two individuals as his executors, then in the event that one of them passes away or becomes insane, the ¦¡kim al-shar’iyy will appoint another person in his place. In the event that both of them pass away or become insane, the ¦¡kim al-shar’iyy will appoint two people in their place. However, if one person is able to execute the will, it will not be mandatory to appoint two executors.
The same will apply if one or both of them become k¡fir, in the event that the will entails guardianship, such as the administration of minor children.
2780. If the executor cannot carry out the will of the deceased by himself, or by enrolling the help of others, the ¦¡kim al-shar’iyy will appoint another person to assist him.
2781. If a portion of the deceased’s estate perishes in the possession of the executor, then in the event that he was negligent in safeguarding it, such as storing it in an unsafe area, or superseded his jurisdiction, such as a case where the testator specifies that a particular amount be given to the poor people in a particular city, and the executor transports it to a different city and the property perishes in the journey, the executor will be held responsible for it.
However, if he has not been negligent, nor has he superseded his jurisdiction, he will not be held responsible.
2782. If a person appoints an executor, and states that should the executor pass away, another person would take his place, then after the first executor passes away, the second executor will have to perform the tasks of the deceased.
2783. The Hajj that is obligatory on a deceased person owing to his ability to perform it, and the debts and religious dues which—like khums, Zak¡t and liabilities—are obligatory for him to pay, should be withdrawn from his entire estate even if he has not made a will to its effect. However if he has made a will that it should be withdrawn from one third of his estate, they should act according to his instructions. If one-third of the estate does not suffice, they should withdraw it from his entire estate.
2784. If the estate of the deceased exceeds the amount required to pay for his debts, obligatory Hajj and other obligatory religious dues like the khums, Zak¡t and liabilities, then if he has made a will that one-third of his estate be spent for a particular purpose, they should act according to his instructions. If he has not made a will, the remaining amount will belong to his heirs.
2785. If the amount specified in the will is more than one-third of the deceased’s estate, then his will with respect to the amount that exceeds the one-third will only be valid if his heirs consent to it by speech or conduct. Their tacit approval will not suffice. It will also suffice if they consent to it some time after his death. In the event that some of the heirs consent to it whilst others do not, it will only be binding with respect to the shares of those who have consented to it.
2786. If the dispensation specified by the deceased exceeds one-third of his property, and his heirs consent to it prior to his death, they cannot withdraw their consent after his death.
2787. If a person specifies in his will that a third of his estate be used to pay his khums, Zak¡t and other debts, and used to hire someone to perform his prayers and fasts, and also used for other recommended acts such as feeding the poor, then the debts should first be paid and someone should be hired to perform the prayers and fasts. If anything remains thereafter, it should be used for the recommended acts specified by the deceased. If one-third of his estate is only adequate to pay for his debts, and the heirs do not consent to anything more than that, then the third will be divided between his debts, prayers and fasts.
