Friday, 8 June 2007

The Laws Of Inheritance In Islam - 2.0


Quick Note:
X = The person making the bequest (wasiyyah)
Y = The executor elected by X
Z = The recipient of the bequest (wasiyyah)

The Bequests Executor

Appointing an executor means for X to put Y in charge of his property, any of his young children, his bequests, paying his debts, or collecting his property from others.

The verbal form for this is:

"I appoint so-and-so to execute such and such a bequest."

The necessary conditions for the validity of X appointing Y as the executor of his bequest are:

(a) that Y be legally responsible (mukallaf);

(b) that Y be upright - meaning the uprightness of Islam, as it is not valid under any circumstances for Y to be a non-Muslim if X is a Muslim); and

(c) that Y must have the knowledge and capacity to properly undertake the bequest.

The following examples of X appointing Y as the executor of his bequest are legally valid:

(1) when X appoints Y as his executor at a time when Y is not legally eligible to be it, but by the time of X's death, Y is eligible (on the condition that the above conditions are fulfilled of course);

(2) when X appoints a group of two or more people as his executors, but he does not indicate to them specific roles, but rather says that they should manage the legacy collectively, then they must cooperate; and must not manage the work, its maintenance, and its related dealings as separate individuals. Cooperate here means that their acts proceed from the decision of the group i.e. via mashuarah (consultation); and does not mean for example, that when they buy something they must all conduct the transaction together. Thus, if all agree to permit something, it is sufficient for one of them to take the matter in hand and carry it out. In short - delegation after consent via mashuarah is permissible.

(3) When X appoints a person (let's call him W), and then after him another person (let's call him Y). Valid examples here may include the dialogues:

"I appoint W as executor until Y comes, but when Y arrives, he is the executor." ; or

"I make W as the executor for one year, and when it has passed, then Y is the executor."

(4) When X appoints Y as executor, authorising him to appoint in turn whomever he chooses as executor of the bequest (if the person fulfills the above qualifying conditions).

X's appointing of Y as the executor of his bequest will not be legally effective until Y accepts this responsibility after X's death, even if this acceptance is not immediately thereafter.

Both X and Y are entitled to cancel the appointment of Y as executor of the bequest whenever they wish; unless after X's death, Y feels it almost certain that the property will be lost through a wrongdoer appropriating it, in which case Y must not withdraw as executor, as it will be Unlawful for him to do so. However, in such a case, Y may continue as the executor with renumeration i.e. for a fee.

It is not legally valid to appoint an executor unless the bequest consists of some good work or pious act, such as - paying off a debt, making up a Hajj, looking after the welfare of one's children, and so forth. However this will not include actions that do not involve distribution of property, such as - marrying off the children. Acts of disobediences are also excluded by default.

When X's father is still alive and fit for guardianship, X may not appoint Y to look after the welfare of his children. This is the ruling.

No comments: