It is important for us to understand the application and enforcement of Wasiat in our country. When it comes to Wasiat, your Wasiat might fall under the category of Wasiat Wajibah.
What is Wasiat Wajibah (Obligatory Will)?
A Wasiat Wajibah or qanuniyyah will is a will that is provided for under the law or by operation of law. A Wasiat Wajibah is enforced on grandchildren who are prevented from inheriting their grandfather’s or grandmother’s assets because their father passed away earlier or simultaneously with their grandfather or grandmother and is prevented by their father or aunt. Therefore, the assets are given to them on certain conditions in the form of a will and not as faraid.
The purpose of the provision of an obligatory will is to take care of the welfare of grandchildren whose father has died so that they also receive a share of their grandfather’s legacy.
There is no definition provided for Wasiat Wajibah in the Muslim Wills Enactment (Selangor) 1999 but it can be understood from the provision as a will that must be given by force of law. Ahmad Termizi Abdullah (2020) stated that if an heir does not make a will, then the law or the judge will make a will on his behalf.
The 83rd National Council Fatwa Committee Discussion, which convened on 22-24 October 2008, held the view that a child whose father or mother has died before his grandfather or grandmother is a grandchild who is entitled to receive an obligatory will by taking the father’s or mother’s faraid share at a maximum rate of 1/3 of the grandfather or grandmother’s estate.
This fatwa is in line with the fatwa issued by the state of Selangor and the Muslim Wills Enactment (Selangor) 1999. Section 27 of the Enactment clearly states the application of compulsory wills in the state of Selangor through the following provisions:
(1) If a person dies without making any will to his grandson from his son who predeceased him or died simultaneously with him, then his grandson shall be entitled to one-third (1/3) of the will and, if the grandson is given a rate of less than one-third (1/3), his right shall be fulfilled according to the rate of obligatory will provided under this section.
(2) The rate of obligatory wills for the children mentioned in subsection (1) shall be to the extent to which his father would be entitled from the estate of his grandfather if it were assumed that his father died after the death of his grandfather:
Provided that the will does not exceed one-third of the estate of the deceased.
(3) The child shall not be entitled to a will if he has inherited from his grandfather or grandmother, as the case may be, or his grandfather or grandmother during his lifetime, and without receiving any consideration, has made a will to them or has given them property equivalent to what they should have received under an obligatory will:
Provided that if the will made by the grandfather or grandmother is less than the share to which he should have been entitled, his right shall be increased accordingly, and if such share is in excess of the share to which he is entitled, the excess shall be a voluntary will which is subject to the consent of the heirs.
Based on the above provisions, it is clear that the share that must be given to the grandson is as much as his father received if he was still alive from the inheritance of his grandfather or grandmother. This share cannot exceed 1/3 of the deceased’s estate. The jurists base this ijtihad on the method of al-maslahah al-mursalah (public interest) since this matter can invite maslahah and reject damage, and it is not contrary to the Syariah law or method outlined by the nas (Quran and Hadith) and ijma’.
This is because by determining the obligatory will, it can bring many maslahah to children who are protected from inheriting property and can avoid two damages to them, such as the misfortune of orphans and the misfortune of being prevented from inheriting property in the situation mentioned in this article.
However, the provisions in the Enactment do not clearly state the procedural aspects, whether the beneficiary needs to make a specific application regarding their rights in the obligatory will at the Syariah Court or whether it is sufficient for the relevant parties to include their rights in the distribution of the inheritance or in the issuance of the faraid certificate.
