Liaison office of Grand Ayatullah Sayyid Ali Al Sistani (L.M.H.L) in London, Europe, North and South America.
2703. A Will is purported to direct that after one's death, a certain
task be completed, or that a portion of his property be given in ownership to
someone, or that the ownership of his property be transferred to someone, or
that it be spent for charitable purposes, or that he appoints someone as
guardian of his children and dependents. A person who is to give effect to a
Will is called executor (Wasi).
2704. If a person who is dumb, can make himself understood by means of
signs, he can Will for anything he likes; and even if a person who can speak,
makes a Will by means of signs and makes himself understood, his Will will be
valid.
2705. If a written paper is found, signed and sealed by a deceased
person, and if it is known or conveyed that he wrote it as a Will, it should be
acted upon. But if it is known that it was not his intention to make any Will,
and that he had simply made some notes for a Will to be written later, it will
not be considered as a Will.
2706. A person making a Will should be baligh, sane, and he should not
be a feeble-minded squanderer. And the Will must have been made with free will
and choice. A Will made by a non-baligh child is invalid, but if a child of ten
years of age Wills for the benefit of his blood relatives, or for general
charity, then that Will is valid.
But if he Wills for the benefit of those
other than his blood relatives, or if a seven year old child WIlls that a
certain part of wealth be for someone, or be given to someone, that Will is a
matter of Ishkal, and in both cases, precaution must not be ignored. As for the
feeble-minded squanderer, his Will related to his property is not valid, but in
matters other than the property, like in matters of some tasks or duties to be
performed for the deceased, his Will is valid.
2707. If a person who injures himself intentionally, or takes a
poison, because of which his death becomes certain or probable, makes a Will
that a certain part of his property be put to some particular use, his Will is
not in order.
2708. If a person makes a Will that something from his property will
belong to someone, and if that person accepts the Will, even if his acceptance
took place during the lifetime of the testator, that thing will become his
property after the death of the testator.
2709. When a person sees signs of approaching death in himself, he
should immediately return the things held in trust by him to their owners, or
should inform the owners, acting according to the details already mentioned in
rule no. 2351. And if he is indebted to others, and the time for repayment of
the debt has matured, and if the creditors make the demand, he should repay the
debt.
And if he is not in a position to repay the debt, or the time for its
repayment has not yet matured, or the creditor has not yet demanded, he should
make arrangements to ensure that his creditor will be paid after his death,
like, by making a Will to inform those who are unaware of the debt and then
appoint witness to the Will.
2710. If a person who sees signs of approaching death in himself, has
a debt of Khums and Zakat, or has other liabilities, and if he cannot make
payment immediately, he should make a Will directing payment, if he owns some
property, or if he knows someone will pay on his behalf. The same rule applies
if he has obligatory Hajj on him. But, if he is capable of paying his religious
dues immediately, he should pay at once, even if he sees no signs of impending
death.
2711. If a person who finds signs of approaching death in himself, has
lapsed (Qadha) of some prayers and fasts due to him, he should direct in his
Will that a person be hired and paid from his estate for their performance. In
fact, even if he does not leave any estate, but feels it probable that someone
would perform them without taking any fees, it is obligatory for him to make a
Will in this behalf. And if he has someone like his eldest son who would
perform, it is sufficient to inform him about it, and it is not obligatory to
Will in that respect.
2712. If a person who finds signs of impending death in himself has
deposited some property with some other person, or has concealed it in some
place of which his heirs are not aware, and if owing to the ignorance of the
heirs their right is lost, he should inform them about it.
And it is not
necessary for him to appoint a guardian, or an administrator for his minor
children, except when it is feared that their property may perish, or they
themselves may be ruined without an administrator, in which case, he should
appoint a trustworthy administrator for them.
2713. The executor (Wasi) should be sane and trustworthy in matters
related to the testator, and as a precaution, in matters related to others also.
And it is necessary as a precaution, that the executor of a Muslim should be a
Muslim.
To appoint a Na-baligh child alone for putting the Will into effect,
is not in order, if the said child is expected to exercise discretion without
permission of the guardian. But if the child is directed to put the Will into
effect after having become baligh, or with the permission of the guardian, there
will be no objection.
2714. If a person appoints more than one executors, allowing each of
them to execute the Will independently, it will not be necessary that they
should obtain permission from one another for the execution of the Will. And if
he had not given any such permission - whether he had or had not said that both
of them should execute the Will jointly, they should execute the Will in
consultation with one another.
And if they are not prepared to execute the
Will jointly, and this unwillingness is not occasioned by any religious scruple,
the Mujtahid can force them to do so, and if they do not obey his orders, or any
one has a religious excuse for not being prepared to act jointly, then the
Mujtahid can replace the dissenting executor.
2715. If a person retracts a directive in his Will, for example, if he
first says that 1/3 of his property should be given to a person, and then says
that it should not be given to him, the Will becomes void. And if he changes his
Will, for example, if he appoints an administrator for his children, and then
replaces him with another person, his first Will becomes void, and his second
Will should be acted upon.
2716. If a person conducts himself in a manner which shows that he has
drawn back from his Will, for example, if he sells a house which he had willed
to give away to someone, or appoints someone as his agent to sell it in spite of
his original wish, the Will becomes void.
2717. If a person makes a Will that a particular thing be given away
to someone, and later changes it to say that half of the same thing should be
given to another person, that thing should be divided into two parts, and one
part should be given to each of them.
2718. If a person who is on his death-bed, bestows a part of his
property as gift on a certain person, and makes a Will that after his death
another quantity be given to yet another person, and if both the gifts exceed
one-third of his estate, and the heirs are not prepared to approve the excess,
then in that case the first endowment should be given to the first beneficiary,
and whatever remains from one-third should be spent according to the Will.
2719. If a person makes a Will that 1/3 of his property should not be
sold and its income should be spent for some particular purpose, his
instructions should be followed.
2720. If a person says during his terminal illness, that he owes
certain amount to someone, and if he is suspected of having said that to harm
his heirs, the amount specified by him should be given out of 1/3 of his
property; and if he is not suspected of any such motive, his admission will be
valid, and the payment should be made out of his estate.
2721. When a person makes a Will that something be given to another
person, it is not necessary that that beneficiary should be existing at the time
of the Will. If, therefore, he makes a Will that something be given to a child
who may possibly be born of a particular wife, it is necessary that the thing
should be given to the child if he is born after the death of the testator.
And if he is not born, and if the Will is construed as general, then it
should be spent in a manner which would be nearer to the object of the Will,
according to the testator.
But, if he makes a Will that after his death, a
portion of his property will be owned by a particular person, and if that person
exists at the time of the death of the testator, the Will is in order, otherwise
it is void, and whatever he willed for that person should be divided by the
heirs among themselves.
2722. If a person comes to know that someone has appointed him his
executor, and he informs the testator that he is not prepared to perform the
duties of an executor, it is not necessary for him to act as an executor after
the death of the testator.
But, if he does not come to know of his
appointment before the death of the testator, or comes to know about it, but
does not inform the testator that he is not prepared to act as an executor, he
should execute the Will if the execution of the Will does not involve any
hardship to him.
Also, if the executor comes to know of his appointment at a
time when due to serious illness or some other hindrance, the testator cannot
appoint any other executor, he should, on the basis of precaution, accept the
appointment.
2723. After a testator dies, the executor cannot appoint another
person to execute the Will and retire himself. But, if he knows that the
deceased did not mean that the executor should execute the Will himself, what he
wanted was only that the given work should be accomplished, he can appoint
another person on his behalf.
2724. If a person appoints two persons as joint executors, and if one
of them dies, or becomes insane, or an apostate, the Mujtahid will appoint
another person in his place. And if both of them die, or become insane or
apostates, the Mujtahid will appoint two persons in their place. However, if one
person can execute the Will, it is not necessary to appoint two persons for the
purpose.
2725. If an executor alone cannot perform all the tasks laid down in
the Will of the deceased, even by appointing someone as his agent or by hiring
someone, then the Mujtahid will appoint someone to assist him in his duties.
2726. If a quantity from the property of a dead person is lost or
damaged while in the custody of the executor, and if he has been negligent in
looking after it, or has gone beyond moderation, he will be responsible.
For
example, if the dead person had willed him to give a certain quantity to the
poor of a particular town, and he took it to some other town, and in the process
it has perished, he will be responsible for it. But if, he has not been
negligent nor immoderate, he will not be responsible for the loss.
2727. If a person appoints someone as his executor, and says that
after that executor's death, another person should be the executor in his place,
the second executor should perform the tasks laid down in the Will of the
deceased, after the death of the first executor.
2728. If obligatory Hajj remained unperformed by the dead person, or
debts and dues like Khums, Zakat and Mazalim (wealth wrongly appropriated) which
were obligatory to pay, were not paid, they should be paid from the estate of
the deceased though he may not have directed in his Will for them.
2729. If the estate of the deceased exceeds his debt and expenses for
obligatory Hajj, and obligatory religious dues like Khums, Zakat and Mazalim,
and if he has also willed that 1/3 or a part thereof of his property be put to a
particular use, his Will should be followed, and if he has not made a Will, then
what remains is the property of the heirs.
2730. If the disposal specified by the deceased exceeds 1/3 of his
property, his Will in respect of what exceeds the 1/3 of his property will be
valid only if the heirs show their agreement, by words or by conduct.
Their
tacit approval will not suffice. And even if they give their consent after some
time, it is in order. But if some heirs permit and others decline to give
consent (to the Will being acted upon), the Will is valid and binding only in
respect of the shares of those who have consented.
2731. If the dispensation specified by the deceased exceeds 1/3 of his
property, and his heirs give consent to that dispensation before his death, they
cannot withdraw their permission after his death.
2732. If a person makes a Will that Khums and Zakat and other debts
due to him should be paid out of 1/3 of his property, and also someone be hired
for performing his qadha prayers and fasts, and also perform Mustahab acts like
feeding the poor, the precaution will be that, his debt should be paid first out
of the 1/3 of his property, and if there is a balance, a person should be hired
to perform his qadha prayers and fasts, and if there is still a residue, it
should be spent on the Mustahab acts specified by him. If, however, 1/3 of his
property is sufficient only for the payment of his debts, and his heirs, too, do
not permit that anything more than the 1/3 of his property should be spent, his
Will in respect of prayers, fasts, and Mustahab acts is void.
2733. If a testator wills that his debt should be paid, and also
someone should be hired for the performance of his qadha prayers and fasts, and
also Mustahab acts should be performed, but does not direct that the expenses
for those acts should be paid from 1/3 of his estate, then his debt should be
paid from his estate, and if anything remains, 1/3 of it should be spent on
prayers and fasts and Mustahab acts specified by him.
And if that 1/3 is not
sufficient, and if his heirs permit, his Will should be implemented by paying
from their share, and if they do not permit, the expenses of prayers and fasts
should be paid from the 1/3 of his estate, and if anything remains it should be
spent on the Mustahab acts specified by him.
2734. If a person claims that the deceased had willed that a certain
amount should be given to him, and two Adil men confirm his statement, or if he
takes an oath, and one Adil man also confirms his statement, or if one Adil man
and two Adil women, or four Adil women bear witness to what he says, the amount
claimed by him should be given to him.
And if only one Adil woman bear
witness, 1/4 of the amount claimed by him should be given to him, and if two
Adil women bear witness, 1/2 of that amount, and if three Adil women bear
witness, 3/4 of it should be given to him.
Also, if two non-Muslim males
from amongst the people of the Book, who are esteemed as Adil in their own
religion, confirm his statement, and if the dead person was obliged to make a
Will while no Adil man and woman was present at that time, the amount claimed by
that person should be given to him.
2735. If a person claims that he is the executor of the deceased, and
can act according to the Will and put it into effect, or that the deceased had
appointed him an administrator of his children, his statement should be accepted
only if two Adil men confirm it.
2736. If a person makes a Will that something from his estate is for a
particular person, and that beneficiary dies before accepting or rejecting it,
his heirs can accept it as long as they do not reject the Will. However, this
order applies when the testator does not retract his Will, otherwise the
beneficiary have no right to lay claim to that thing.