The Application of Hibah and Will in Property

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Chapter 3 – Application of Hibah and Will in Property

3.1 – Property in Islam

The property and wealth of a person is consider as a gift from Allah SWT that shall be used in accordance to his commandments. Therefore, strict rules regarding a person’s property and wealth has been clearly specified by Islam. This is to ensure it to be properly manage because every single thing in this universe belongs to Allah SWT and therefore, human being are the entrusted and trusteeship of Allah.[1] This commandments has been explained in Surah Al- Hadid (57:7) which states that – “Believe in Allah and His Messenger and spend out of that in which He has made you successors. For those who have believed among you and spent, there will be a great reward”.[2] From the above verse, it is clear that all the property and wealth of a person belong to Allah SWT and being the administrator, human beings shall manage it accordingly. Every Muslims who have left behind their own halal property and wealth must refer to Islamic rules. The property and wealth shall concerns regarding the legal transactions, rights and obligations that arise due to it.

3.2- Will in Property

Who can make a will? Following the Islamic law, any person who has the property and wealth may make a will provided that, the property is owned and possesses by him or herself. Besides, the property also must be halal property which is valuable in the eyes of Sharia.[3] As a basic rules, the portion of will may be bequest during the lifetime of a person and it is only effective after the death of the person making the will, or known as testator. As mention, only 1/3 of the property of a person may be outset for will. In a Hadith narrated by Sa‘d ibn Abi Waqqas (RA): "I was stricken by an ailment that led me to the verge of death. The Prophet came to pay me a visit. I said, "O Allah's Apostle! I have much property and no heir except my single daughter. Shall I give two-thirds of my property in charity?" He said, "No." I said, "Half of it?" He said, "No." I said, "One-third of it?" He said, "You may do so, though one-third is also too much, for it is better for you to leave your offspring wealthy than to leave them poor, asking others for help..."[4] Furthermore, when a Muslim dies, the 1/3 amount must be calculated after it has been deducted for some obligatory duties which need to be performed. Such portion may include, payment of funeral expenses, payment of his or her debts, payment for the execution his or her will and distribution of the remaining estate amongst the heirs according to Sharia or known as Faraid. In Malaysia, a body such as Majlis Agama Islam Selangor (MAIS) also offers service for making a will. A person a wish to make a will must first pay an amount of RM200 for registration and implementation of a will. The range of payment may vary starting from 2% for the first RM 25,000 property up to 0.25% for property amounts from RM 200,000 and above.[5] The general application of will on property in Malaysia is separated between a Muslim and a non-Muslim. For a non-Muslim, they are obliged under the Wills Act 1959[6] however for Muslims, the hukm for will is operated separately by different states such as under the Selangor Muslim Wills Enactment 1999- which is the first rulings of Islamic Wasiat, Negeri Sembilan Muslim Wills Enactment 2004 and the Melaka Muslim Wills Enactment 2005. The rulings from the statutes are primarily based from the Islamic legal rulings, besides the rulings from the statutes are also void if it contravenes to any of Islamic rulings.[7] In matters regarding will, both the civil and Sharia court will have jurisdictions. The Civil courts will have the jurisdiction to issue probate and gives permission to bequest the property according to Shariah law.[8] While the Shariah courts have the jurisdiction to determine the validity of will and to enforce or settle any disputes that may occur. In Selangor, under Section 5 (4) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003, the Council shall have the power to act as executor of a will or an administrator of the estate of a deceased person or as trustee of any trust.[9] Therefore, in 2005, MAIS had established a unit called Wills & Trusts Unit functioning to accept the applications for executing wills and testaments of all Muslims in the state.

3.2.1- Selangor Muslim Wills Enactment 1999

Under the Selangor Muslim Wills Enactment 1999, Section 3 states that will can be made either by oral with 2 witnesses, written by filling forms or by signals which may be understand.[10] This is clearly been distinguish from the non-Muslim who is governed under the Wills Act as every will must be subjected on written form.[11] In a case of Nik Salma Zaidah binti Haji Wan Zaid v Nik Hasnah binti Nik Din[12], the appellant claimed that his foster father had told her in front of both respondents that he wanted to build a house to be given to her. Accordingly, the foster father had provided funding for the construction of the house. However, the house could only be built after the death of the foster father. The issue was whether the words uttered by the foster father can be regarded as a will. The Kota Bharu Kelantan Syaria Court of Appeal ruled that such words can be accepted as a will by way of kinayah (indirect) and the appellant is considered as the recipient of the said will when she managed the construction of the house and later occupied it. While, under Section 6, it specify that a person making a will must be above the 18 years of age, sound mind, wilfully without force and has authority over the said property.[13] This is to ensure that the property bequest is a valid property and owns by a valid owner. Section 7 further describes the beneficiaries to be known and eligible to own such property to ensure that the bequest property will be subjected to a valid persons.[14] Section 12 explains on how a Will may be invalid if the testator to be an unsound mind and dies in that state or when the beneficiary dies before the testator or the property perish before the death of the testator or the testator revoke his will.[15] As a result of such, Section 17(6) provides that if a beneficiary die before he manages to accept or reject a will, the heirs should decide whether they intend to accept or reject it.[16] In a hadith the Prophet Muhammad SAW once said, "One who kills a man cannot inherit from him."[17] Based on this hadith, Section 14 clarify a parson who cause a murder of a person, shall not inherit his or her property.[18] The Malaysian Fatwa Council, in October 2008 had decided the ‘Wasiat Wajibah’ is recommended among Muslims as it is beneficial to heirs who are not eligible to receive any portion of property according to the ‘Faraid’. The Malaysian Fatwa Council refers their argument by referring to Ibn Hazm al-Zahiri which states Will in Islam is ‘Wajib’ towards family which is not eligible for Faraid.[19] This situation refers to grandchildren whose rights in receiving the property from grandparents was prevented by Faraid for their mothers or father. Under the Selangor Muslim Wills Enactment 1999, Section 27 states the same situation where a grandparents may bequest a portion of his or her property to grandchildren.[20]

3.3- Hibah in Property

Hibah of property can be made by someone and it will be considered as a private contract which is created during the lifetime of both the donor and the donee. It can be made by donor to any person whom he or she intends to distribute the property. According to Syafie, a fair way of distributing one’s property to the children while one is still alive is to give away equal amount without differentiating between boys and girls. At the moment in Malaysia, there is no specific law which governs the administration of hibah. [21] Therefore, in this discussion, cross reference will be made through court’s decisions and Islamic legal rulings. Many cases of Hibah in Syariah Court are often regarding a wife claimed that she was promised by the husband that the matrimonial home was a gift to her and the deed of ownership was in her name but after their divorce, the husband denied that it was a Hibah and claimed that as he paid for the property, he has some right to it. As Hibah may be regarded as a contract law in Malaysia, therefore on the Meeting of the Islamic Law Consultative Committee of the Federal Territory in 2000, it was decided that attachment of conditions is allowed if Hibah were to take place. Besides, the Syaria Advisory Council (SAC) of the Securities Commission in 2003 agreed to adopt the principles of hibah ruqba as the syaria basis in the implementation of the hibah declaration form for transactions. Hibah Qubra refers to conditional hibah where a hibah is to be given based on some contitions.[22] In the case of Eshah Bt Abdul Rahman v Azuhar B Ismail, the Court stated that Hibah given by parents can be revoked as long as the gift hasn’t been developed or given to another or that there were no consideration for the gift. [23] This shows that hibah carries a similar effect if any of its contarct is to be revoke. In Roberts v Ummi Kalsum the court ruled there are three essentials of a valid hibah under Muslim law namely, the declaration of gift by the donor, express or implied acceptance of the gift by the donee and the delivery of possession of the gift by the donor to the donee. Absence of any those elements will make hibah invalid. There elements was essential is to ease the court to determine whether the said property that were given is a hibah. [24] In Harun bin Muda and Others vs Mandak binti Mamat, the claims made by the plaintiff was to confirm that the land was a hibah from the deceased. The High Court ruled that that hibah had taken place even though qabul happened through actions whereby after ijab, the property had been developed, or worked on, or benefited by the defendant.[25]
[1] Abu Al Jauzaa’. (2012, September 26). Wealth and Properties: Islamic Perspective. Retrieved December 19, 2014, from http://syaria.com/wealth-and-properties-islamic-perspective/ [2] Surah Al Hadid (57:7) [3] Will Template Guidelines. (2011). In Preparing an Islamic Will (3rd ed., pp. 10-13). Bolton: LST Ethical. [4] Sahih al-Bukhari, Sahih Muslim, Muwatta, Tirmidhi, Abu Dawud and Ibn Majah. [5] Pengurusan Wasiat. (n.d.). Retrieved December 19, 2014, from http://www.mais.net.my/index.php?option=com_content&view=category&id=27&layout=blog&Itemid=83 [6] Act 346 [7] Selangor Muslim Wills Enactment 1999, Section 28 [8] Probate and Administration Act 1959 [9] Administration of the Religion of Islam (State of Selangor ) Enactment 2003, Section 5 [10] Selangor Muslim Wills Enactment 1999, Section 2 [11] Wills Act 1958, Section 5 [12] Nik Salma Zaidah binti Haji Wan Zaid v Nik Hasnah binti Nik Din [2002] XV JH 143 [13] Selangor Muslim Wills Enactment 1999, Section 6 [14] Selangor Muslim Wills Enactment 1999, Section 7 [15] Selangor Muslim Wills Enactment 1999, Section 12 [16] Selangor Muslim Wills Enactment 1999, Section 17 [17] Tirmidhi and Ibn Majah [18] Selangor Muslim Wills Enactment 1999, Section 14 [19] Muzakarah (khas) Jawatankuasa Fatwa Kebangsaan held on 24th October 2008, http://www.e-fatwa.gov.my/fatwa-kebangsaan/hukum-pelaksanaan-wasiat-wajibah [20] Selangor Muslim Wills Enactment 1999, Section 27 [21] Zulkifli Hasan. (n.d.). HIbah and Application. In An Introduction to Islamic Law of Property in Malaysia. [22] Ibid. [23] Eshah Bt Abdul Rahman v Azuhar B Ismail (1997) XI (II) Jurnal Hukum 219 [24] Roberts v Ummi Kalsum (1966) 1 MLJ 163 [25] Harun bin Muda and Others vs Mandak binti Mamat and Others [1999] XIII (I) JH 63
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