Will: A Comparative Analysis Under Common and Islamic Laws
Chapter One
AIMS AND OBJECTIVES OF STUDY
The aims and objectives of this project work are to examine the creation of a valid will in both Islamic and English laws through a comparative study. It also aimed at getting people acquainted with the nature of will through a comparative analysis of various provisions in Islamic and English laws. Similarly, this research is an attempt to create knowledge on the effect of will not in compliance with Islamic and English laws. Furthermore, it aims at getting people, especially the Westoxicated Muslims, to know the limitations set by Islamic law on will. And to see the perfection, justice and equity in Islamic will creation, compared to the series of injustices entertained by English will.
CHAPTER TWO
INTRODUCTION
This chapter will pave way to discussion of the Islamic background of Will, form or nature it took before and after the advent of Islam, particularly among the Arabs. Subsequent to this, definition of the term Will according to Islamic Law, this will lead us to consult various schools and some juristic attempts in defining the term Will. Discussion will also extend to the esssential elements that could constitute a valid Will in Islamic Law. What are they, how many of them, and what effect have they? And finally what conclusion can be drawn from the whole discussion so far.
HISTORICAL BACKGROUND OF WILL UNDER ISLAMIC LAW. For a proper appraisal of historical background of Will making under Islamic Law, it is apposite that this topic is sub-divided into; Will in pre-Islamic era and post-Islamic era.
NATURE OF WILL IN PRE-ISLAMIC ERA
The pre-Islamic nature of Will was quite different from what is now obtained in Islamic legal system. In the Jahiliyah period before Islam, Arabs disposed of their property as they liked because no Law concerning bequests or inheritance existed to guide them. They could make a bequest in favour of any one, depriving their own parents, children and wives. At times the bequest was made in favour of rich and influential members of the clan.
In those days, Will was as contained in the English Will act of 1837 1, where by virtue of section 3 there of; all properties could be disposed of by Will.
Consequently, Arabs disposed of their properties by Will without putting the interest of their heirs into consideration.
NATURE OF WILL IN POST-ISLAMIC ERA
In order to alleviate the injustices and unfairness occasioned by the disposition of property by way of Will in pre-Islamic era, the birth of Islam acknowledges and establishes the need to make effective and valid disposition of property by way of Will, so that the testator’s heirs would not be deprived of their respective shares in the estate of the prepositus.
Thus, by the combined effect of the provisions of the following Quranic verses; Quran Chapter 2, verses 180-182
“It is prescribed for you, when death approaches any of you, if he leaves wealth, that he makes bequest to parents and next of kin, according to reasonable manners. This is a duty upon the pious.” 2
“Then whoever changes the bequest after hearing it, the sin shall be on those who make the change. Truly, Allah is All-Hearer, All-knower.” 3
“But he who fears from a testator some unjust act or wrong-doing, and thereupon he makes peace between the parties concerned, there shall be no sin on him. Certainly, Allah is oft-Forgiving, most Merciful.”
CHAPTER THREE
INTRODUCTION
Both common Law and English statue recognize the right of an individual or owners of a property to dispose his property in a variety of ways or in accordance to the dictate of the individual that possessed such property but sometimes subject to limitations imposed by Law.
This chapter will let us understand the nature of will under the common Law, as well as under the statue. The formalities and limitations imposed by the statute. What are the essential elements set by the statue to constitute a valid will, and what effect will it has? All these are issues to be entertained subsequently.
HISTORICAL BACKGROUND OF WILL UNDER
COMMON LAW.
Historically, wills of a sort were made in the Anglo-Saxon period, but they were irrevocable and, probably, not ambulatory. Thus, once the testator had by his “last words” made a will, he could not retract it and was probably obliged to carry it out immediately, rather than retaining the property until death. He might, however make a so-called ‘post-obit gifts’, or an immediate gift of personality but with the retention of the use of the chattels until death. Wills of land were not usually possible at all, in any case, it was considered proper for land to devolve in accordance with the customary rules of inheritance. Gradually, Wills in writing evolved, stating what the testator considered would be his last words when the time came; the church did not insist on any formalities, given that the potential for technical defects could only open the way to sinful intestacies 1.
CHAPTER FOUR
A COMPARATIVE ANALYSIS OF WILL UNDER ISLAMIC AND ENGLISH LAWS
INTRODUCTION.
This chapter will be basically centered on general comparative analysis of the work so far. comparative analysis in the sense that, some fundamental areas of both Laws (Islamic and Common) related to will are to be comparatively analysed. Starting from the historical background and definitions of Will under both Laws, essential elements of Will as required under both Laws, and essentially, critical examination of the case of ADESUNBOKAN V. YINUSA (supra).
CHAPTER FIVE
RECOMMENDATION
Having considered the basic essentials for the validity of Will in both Islamic and English Laws, it could be stressed that once a person is a Muslim or has subjected himself to the doctrine of Islamic Law on will, such Law should govern his Will and he is not religiously entitled to make a Will in accordance with any Law other than Islamic Law.
Similarly, once a person has subjected himself to the provisions of English Law on Will, the essential requirements of such Law should be complied with strictly.
However, if a Muslim ignorantly makes a Will, but in accordance with English Law, the limitation imposed by Islamic Law should not be swept behind the closed doors of secrecy and the Will should be allowed to be set aside. Or, in the alternative, each state of the federation should endeavour to enact its own Law as being done in some states, and subject any testamentary disposition of property to the recognized personal Laws and customs of the testator. Thus, section 3(1) of the Wills Law of Bendel State1 provides that:
“Subject to any customary wills Law relating thereto, it shall be Lawful for every person to devise, bequeath or dispose of … all real estate and all personal estate…”
This provision is akin section 3 of the English Wills Act 1837 but subject to Bini custom so that a person can make a will, but the device, bequest or disposition therein shall not be inconsistent with the established customary Law but rather be governed by it 2.
Thus, in the Bini native Law and custom the Igiogbe cannot be taken away from the eldest surviving son its disposition by the testator to persons other than his eldest surviving son 3. Such a custom as been held not to be repugnant to natural justice, equity and good conscience4.
It is therefore submitted that Nigeria should stop swallowing the concept and ideas of English Law which does not suit its local circumstances. What is proper is to demonstrate maturity and take the best from the English Law without throwing into the wind the good sides of its own culture 5.
Freedom of testator must therefore be subordinated to the obligations of marriage and parenthood which should not cease at death and which Islamic Law has expressly provided for.
GENERAL CONCLUSION
In the foregoing headings, certain issues have been dealt with concerning Wills in Islamic and English Laws. Accordingly, introductory chapter introduces generally the message of the research. It states the aims and objectives of this work and summarises the basic statement of the research. The chapter also justifies the need to embark on the work and proffer reasons for limiting the scope of the work to the general nature of Will through a comparative analysis of Islamic and English Laws.
Following the introductory chapter is chapter two which deals with Will in Islamic Law whereby both pre-Islamic and post- Islamic testamentary disposition of property has been examined. Will has equally been defined in this chapter. Following this, the basic essentials of a Will in Islamic Law are discussed.
A separate chapter is allotted for Will in English Law. The chapter discusses Will at English Common Law as well as the position under the English statute. Will is defined in accordance to English Law. Similarly, the essentials of Will in English Law are discussed.
Afterwards, work done in chapter two and three are comparatively analysed in chapter four. A controversial case of ADESUBOKAN V. YINUSA (supra) is also examined in the chapter.
Conclusively, however, in English Law, a person can make a Will, and generally speaking, his property will be distributed according to his wishes expressed in the Will, having complied with the essentials for validity of Will in English Law. It is only in the event of a man dying without making a Will that the rules of intestacy in English Law are applied.
Islamic Law, on the other hand, is in the opposite direction. In Islamic Law, series of rules have been evolved which govern distribution of the deceased’s estate among his heirs, and if the deceased makes a Will, having complied with the essential requirements, can only bequeath no more than one-third of his net estate6. Thus, a Muslim can die testate but cannot die intestate, because Islamic Law stipulates how to handle his estate7.
We have clearly shown that a Muslim that does and subject distribution of his estate to the execution of his will according to the English Law, dies on a wrong path that is antithetical to the path of Sunnah and Islam. There is further clarification that a Muslim has no freedom to arrange for his estate to be distributed in violation of the provision of the Islamic Law.
Therefore, will under the Islamic Law serves both as religious practice as well as legal instrument to aid the distribution of estate after demise.
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