The Will

The Will and Its Related Aspects in the Quran and Sunnah: A Detailed Study
Prepared by Dr. Consultant Talal Saber Hisham

Since the subject of wills is one that requires correct interpretation and deep understanding, and as it is often a matter of debate due to the lack of proper comprehension, we shed light on it with some explanation.

First: The Pillars and Conditions of a Will

1. The Testator (Al-Mūṣī)

The testator is the person who executes the act of transferring ownership to take effect after death. He is defined as the individual who establishes the will, expressing his desire and consent to transfer ownership to whomever he wishes after his death.

2. The Beneficiary (Al-Mūṣā Lah)

The beneficiary is the person to whom the ownership is transferred after the testator’s death. He is defined as the person or entity to whom the property of the will is transferred after the testator’s death. The following conditions must be met:

  • The beneficiary must not be a legal heir.
  • The beneficiary must not intentionally kill the testator.
  • The beneficiary must be alive at the time of the testator’s death. If the beneficiary dies before the testator, the will becomes void, regardless of whether the testator was aware of the death or not.
  • If the will was made for a specific person, that person must accept it after the testator’s death.
  • If the beneficiary dies after the testator but before accepting the will, his heirs may accept it unless the testator had specified the beneficiary personally, in which case the heirs cannot claim it.
  • The beneficiary must be legally capable of ownership, whether in actuality or in principle, including free persons, slaves, unborn children (if they exist at the time of the will), and deceased persons if the testator was aware of their death.

3. The Bequeathed Property (Al-Mūṣā Bihi)

This refers to the asset that is being transferred after death as a voluntary donation. The conditions for this are:

  • The bequeathed portion must not exceed one-third of the estate.
  • It must be something that the beneficiary can lawfully own.
  • The will is invalid if it includes prohibited items, such as alcohol or illicit activities.
  • The testator may specify a particular asset (e.g., a house), in which case the heirs must respect the will.
  • If the specific bequeathed asset is destroyed before the testator’s death, the will is void, and it does not transfer to other assets.

4. The Will’s Declaration (Al-Ṣīghah)

The declaration refers to the words used by the testator to express his will, whether verbally, in writing, or through gestures. It is defined as any wording that indicates a will or manifests the contract in an external form.

In jurisprudence, the declaration consists of two components:

  • The offer from the testator.
  • The acceptance from the beneficiary.

Legal Provisions on Wills in the UAE

The laws governing wills in the UAE are stipulated in Federal Personal Status Law No. 28 of 2005, amended by Federal Law No. 8 of 2019, Federal Decree-Law No. 5 of 2020, and Federal Decree-Law No. 29 of 2020, under Articles 251 to 264:

Article 251

  1. A will is valid for a specific living person or a conceived fetus.
  2. A will is valid for a defined or undefined group.
  3. A will is valid for charitable causes that are lawful in Sharia.

Article 252

  1. A will to a specific person requires their acceptance after the testator’s death or during their lifetime, provided they remain accepting after the testator’s death.
  2. If the beneficiary is an unborn child, a minor, or someone legally incapacitated, their legal guardian may accept or reject the will with court approval.
  3. A will to an unspecified group does not require acceptance and cannot be revoked by any individual.
  4. Institutions or organizations receiving a will must have an authorized representative to accept or reject it with court approval.

Nullification of a Will

A will may be nullified by explicit revocation or under the following conditions:

  • Revocation by the testator, either explicitly or implicitly.
  • Loss of legal capacity due to insanity or similar conditions. Some schools of thought argue that insanity nullifies a will, while others assert that it does not, as legal transactions are valid if the person was mentally competent at the time of execution.
  • Rejection by the beneficiary: Scholars differ on the effect of apostasy on a will. Some say it becomes void regardless of whether the person returns to Islam, while others argue that it only becomes void if the person dies as an apostate.

Article 253

  1. The beneficiary is not required to accept the will immediately after the testator’s death.
  2. If the beneficiary remains silent for 30 days after learning of the will, it is considered accepted. If the will includes obligations, the period extends to 50 days.

Article 254

The beneficiary has the right to reject the will in whole or in part.

Article 255

If the beneficiary dies after the testator but before expressing acceptance or rejection, the will passes to their heirs unless it includes obligations.

Article 256

  1. The beneficiary owns the bequeathed property from the date of the testator’s death, provided they accept it.
  2. If a beneficiary dies before distribution, their heirs take their place.
  3. If multiple beneficiaries exist, the property is divided equally unless the testator specified otherwise.
  4. If a pregnant woman gives birth to one stillborn and one living child, the surviving child inherits the bequest.

Article 257

  1. If a will is made to a group that cannot be definitively counted, it applies to those existing at the testator’s death and future members.
  2. The group is determined once all parents have passed away or no longer have the possibility of having children.
  3. If no members remain, the bequeathed property reverts to the inheritance.

Article 258

If the bequeathed asset is intended for an unspecified group, its distribution fluctuates based on births and deaths.

Article 259

If there is a risk of loss or devaluation of the bequeathed asset, it may be sold, and the proceeds used to benefit the beneficiaries.

Article 260

  1. Bequests to charitable causes must be used for lawful purposes.
  2. The proceeds of the bequeathed property must be allocated to similar institutions if the original institution ceases to exist.

Conditions Agreed Upon by Scholars

  1. The testator must be legally competent (sane, of sound mind, and mature).
  2. The testator must be acting voluntarily.
  3. The testator must own the property they are bequeathing.
  4. The testator must not have debts that consume the entire estate.

Conditions Disputed Among Scholars

  1. Freedom: Some scholars argue that a slave’s will is invalid unless they are freed before their death.
  2. Speech Ability: An individual must be able to communicate, but a mute person’s will is valid if conveyed through writing or gestures.
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