"Wasiyah" distribution in one's lifetime?

[Student]

Salaamun Alaykum,

Can "Wasiyah" be executed in one's lifetime and still considered as such (i.e., still termed/called/known as "Wasiyah"), which is enjoined? Or Will this distribution be considered a Gift/Hiba, which is voluntary?

Thanks in advance for your kind consideration if you spare some time sharing your views. I didn't find this scenario/possibility in forum discussed upon searching.

[Truth Seeker]

Salaam Student,

A wasilah is only applicable after death with distributions made according to your will and with the proportions as stated in the Quran.

If for example during your lifetime, you wish to give some money to your children, it should be given in equal measure to each of them.

If you want to give something to another person as a gift, then you are free to do so as long as your intention is not to deprive rightful heirs of their rights.

[optimist]

I don't think there is any restriction imposed by the quran to give "equal measure to each children".  During lifetime if one gives money to his children it will be based on need and several factors.  It can be that his one child is richer than the other child, one child is disabled and so and so. The Quran does not impose a retriction how money should be spent on children.  It is one's choice. 

The inheritors have right ONLY what is LEFT BEHIND by the testator without specifying anything as wasiyah.  Here also restriction imposed on a testator not to do wasiyah more than 1/3 of his wealth or not to make wasiyah for his legal inheritors is quranically incorrect in my view.  If a testator believes it as fair to divide his wealth in a particular manner CONSIDERING THE NEEDS, WELLBEING AND CIRCUMSTANCES OF HIS CHILDREN, PARENTS AND WIFE it is still his choice.  The inheritors have right only on what is left behind and what is left behind is only to be divided according to the shares prescribed in the quran.

[Truth Seeker]

Salaam Optomist,

I was only imparting my own opinion regarding gifting children money equally in their lifetime and yes, the Quran is silent on this matter. Obviously a disabled child is a different situation because they will have more needs compared to their siblings.

Putting that aside and in the case where children are healthy etc, I personally feel that they should all receive an equal share, regardless if one may be better off than another. We don't know whose situation could change in the future so just out of fairness I feel that they should have equal amounts otherwise it could seem to one child that you are favouring their siblings over them and potentially lead to unnecessary animosity.

It may be that the 'richer' child may refuse your gift and in that case you could reallocate it to other children, but the main thing would be to at at least offer the same amount to all of them.


With regards to Wasiyah, you are correct when you say that a limit of 1/3 allocation of wealth is not in the Quran. The primary will takes into account any specific legacies that are an 'exception' to the norm but they mustn't cause harm to the legal heirs of the deceased.


For example, you have 3 children and you are estranged from 1 of them who you completely exclude from the will by allocated equal shares to the other 2 children.

Or 1 of them are extremely rich and you exclude them in your  will. These examples would mean that your will is not in the spirit of the Quran and it can be argued that it should be adjusted to correct any errors.

Quran 2:182
"But whoever fears any error or sin on the part of the testator, then reconciles between them (the parties concerned), then there is no sin on him. Indeed, God is Oft-Forgiving, Most Merciful"
 

[Student]

Thanks dear Truth seeker and Optimist for your kind explanations. I feel my question in the main still wanting answer. Let me reframe:

Let's say I want to sell all my immobile assets, estate and other valuable goods just soon after my retirement and give everything to all eligible heirs (and also make charitable donation from this) taking into factors each heirs present conditions albeit keeping the spirit of the Quran for this execution. After this distribution nothing is left which has any significant value if I die later for heirs to fight over on.

Is this better (execution of my will in my lifetime) or make the same exact will and defer it till my death for posthumous execution by trustee? In the former case I feel like I've fulfilled this enjoined duty of God on me. Why write a testament and delegate it to someone and live with the fear of alteration (2:181) & settlement of court battles b/w siblings, rancor, severance of relationships etc (2:182) when I can get the job done myself in my lifetime itself (after retirement)? I also fully acknowledge that this is not practical for everyone in every circumstance but wherever it may become I feel doing yourself seems and sounds more logical and near to one's Taqwa.

Please share your thoughts.

[Athman]

Dear Student,

Wa 'alaikumus salaam,

With respect to your issue of concern, in addition to the respectful inputs as go above parting with deep insights into the subject and given the Qur’anic position with regards to the obligated responsibility of prescribing a ‘wasiyah' amongst believers, may I also share a humble opinion from my view.

Firstly, in as much as one would suggest a contingent option to a given divine religious prescription/ delegation, it must be maintained that such a fallible alternative has neither theoretically nor practically been divinely sanctioned explicitly and that there’s no religious solid grounds to justify it in preference over the recommended one. With all due respect, to use fallible and contingent justifications such as ‘...fear of alteration (2:181) & settlement of court battles b/w siblings, rancor, severance of relationships etc (2:182)…’ is to inherently assume that the divine delegation did not take that into consideration or at least overlooked its potential impact. Either way, this has to be proven. Furthermore, problems such as ‘…rancor, severance of relationships etc…’ remain contingent to the situation regardless.

In my view, the Qur’anic prescription towards the matter proffers an ideal avenue to the testator through which they prescribe a manner in which their ‘legacies’ are to be shared post-death as appropriate. In this context, it also inherently assumes an ideal Islamic family setup as well as an ideal ‘executive’ system under which fallible 'trustees' are to faithfully deliberate the same amongst and to fallible believing Muslims. Any inconsistency or potential inconvenience to heirs remain exactly fallible i.e, subject to human fallible character (testator, witnesses, executives, heirs, etc) and not the divine infallible delegation (wasiyah idea) itself - with respect to its time aspect whatsoever. Nevertheless, some human shortcomings are also recognized and ways to curb them suggested (5:106-108) even in other dealings (2:282-284). Even so, in the context of whatever potential uncertainties, we have to humbly submit our endeavours into the remit of our abled capacities (64:16).

It must however be pointed out that in the divine delegation, even the human function has been provided for where one is given chance to determine the respective shares as deemed appropriate by the testator - with no potential compromise (ghayra mudhwarin). Thus, in my opinion, to argue for the human function in determining the appropriacy of the time aspect for ‘wasiyah’ execution (where it has not been given despite it being provided for at another level) would be akin to providing for human intervention of the divine prescription. This is before even looking into its impact with other aspects such as other prerequisites to the 'inheritance' distribution i.e, debts (4:12).

Hopefully that also slightly gives some perspective into the subject God willing.

And Allah knows best.

Regards,
Athman.

[Student]

Salaamun Alayka,
Dear Athman,

Thanks for taking time to address my query thoroughly and professionally and to my satisfaction

I didn't mean to find or suggest loop hole (God forbid) in Divine instruction, quite opposite I was trying to take cue from these very commands and apply in advance. But as you explained all precautions can and must be kept in mind preparing wasiyah.

I think this (taraka) will never materialize in large estates if we sincerely act on 2:219 and over arching message of Quran condemning hoarding wealth.

Thanks and JazakAllahu Khairan for your kind and detailed explanation