Why should one make a will? –
Most people believe that their possessions will automatically pass on to their spouse and children with no complications and everyone will receive what the deceased wanted them to. The fact is, unless you have made a Will, there is no guarantee that this will happen. Having a Will makes your passing away a little bit easier for those you leave behind.
It is incumbent on every sane person who has assets in his/her name to draw up a Will. This ensures that one’s estate is wound up in an orderly manner and that your heirs are clearly stated. Not having a Will can create uncertainties and can even lead to family feuds. This is a duty, not to be neglected because death is uncertain. Imagine the distress that is caused to the widow, or children, by one not having a will.
Having a will ensures the speedy disposal of your wealth, avoids unforeseen hardships to your family members and alleviates unnecessary problems for the Executor.
Apart from the Law, The Holy Qur’an and the Hadith lay great emphasis on the drawing up of a Will. The Holy Prophet Muhammad (SAW) is reported by Hadrat Ibn Umar (RA) to have said: “It is not permissible for any Muslim person who has anything to bequeath, that he should spend even two nights without having already written his Last Will.”
The Islamic laws of inheritance differ substantially from that of Western Laws. In South Africa, if a person dies without a will, his estate would usually devolve according to the provisions of the Intestate Succession Act. The implications of a Muslim estate being dealt with in terms of the Intestate Succession Act are that heirs who should not have inherited according to Islamic law inherit, or the heirs may get more or less than the shares specified for them in accordance with Islam.
Further, if you die without making a Will, the Master of the High Court will appoint an Executor to deal with the estate. This may take a while and will result in a delay in the disposal of assets and extra costs will be incurred. Also, the person who is appointed as Executor may be somebody you would not have personally chosen.
A will is also important if the deceased leaves minor children, so that you can nominate guardians of your choice. If both parents die and there is no provision made for a guardian, the court will have to appoint a guardian.
In South Africa, the principle of “freedom of testation” applies. This means that you decide how you want your estate to be wound up after your death. It is therefore important that Muslims execute a Will which specifically states that Islamic Law of Succession, applies at their death.
The Islamic will comes into effect after a person’s death. The will is acted upon after the payment of funeral expenses and any outstanding debts.
Unlike South African Law, which allows complete freedom of Testation that is freedom to whomsoever one wishes to bequeath your assets. Islamic law allows a person to bequeath up to 1/3 (one third) of his or her estate to whomever he or she wishes. With regards to the other two-thirds, this must be divided according to the shares specified by the Shariah. (Most of these shares have been specified in the Holy Qur’an itself)
Although according to Islamic law, a Will need not necessarily be in writing or in any particular form to constitute a will, the laws of the land makes it obligatory upon a person to prepare a Will in writing. Our law does not recognise oral declarations.
It is very important that even though one is doing an Islamic Will you must execute the Will correctly in accordance with South African Law. The Wills Act prescribes the legal requirements for a valid will. The Testator must be of sound mind at the time of making the will. You can’t leave your will unsigned, every single page of the will must be signed by the Testator and two competent witnesses. The witnesses must sign in the presence of the Testator and each other. Please note that an heir or the nominated Executor cannot sign as a witness. If an heir signs the will then the heir shall be excluded from receiving his/ her share. If the Testator cannot sign and signs by making a mark or fingerprint, this must be done in the presence of a Commissioner of oaths and must be ratified by the Commissioner.
Due to the legal nature of the Will it is advisable to go to an Attorney who understands the legal requirements and has the necessary knowledge and expertise. Once your will is done, it is advisable to leave same with your attorney for safekeeping. The reason is that upon the death of the Testator, the original will have to be lodged with the Master of the High Court. If the original will is missing, it is viewed as if the person passed away Intestate ie without a Will or the Deceased’s family will have to make application to the High Court to accept a copy of the Will. This can be quite expensive and will result in a huge delay in the administration of the Estate.
Please do not procrastinate and contact us today to attend to your will.
BY: FATIMA SALAJEE