Guardianship
al-Wisayah
Testament is a promissory statement by the effect of which one person will delegate to another the authority to execute his wills after his death. This will include paying his debts or the collection of debts owed by others to him, the guardianship of his children and spending for their support and maintenance etc. It is also known as the Wilayah or al-wasiyyah al-‘ahdiyyah. The person chosen is known as the al-Wasiyy al-Mukhtar.
Qualifications of the Wasiyy
He must be mature, that is mentally competent and adult, since the insane and the minor cannot make such guardianship on their own behalf, then how can they undertake responsibility on behalf of others?! Although the Imámís say that the wisayah of the minor by unaccompanied is invalid but his wisayah if coupled with that of an adult is valid. Whereby the adult will undertake actions alone until the minor becomes an adult at which time he will share the responsibility with him. The \anafís say: If a minor was designated, the judge will replace him. But if he undertakes any action before being replaced by the judge, his actions shall be valid. And he shall remain in that capacity also if he reaches adulthood before being replaced by the judge. [al-Fiqh ala al-Madhahib al-Arb’ah and al-Tadhkirah]
A particular person must be identified as the wasiyy, otherwise, the wisayah is void.
The capacity must be defined. If the wisayah has been left undefined as to say that so-and-so is wasiyy without determining on what, the wisayah shall be void according to the Imámís, \anafís , Sháfi`ís , and \anbalís . Málikís say that he then shall be a wasiyy on every thing.
Wasiyy must be Muslim. Hence a Muslim cannot appoint a non-Muslim as a wasiyy by consensus. Hanahis however add: If a non-Muslim has been appointed wasiyy, the judge must replace him with a Muslim. The wasiyyah is nonetheless valid, hence if the non-Muslim wasiyy before being ousted by the judge or if he becomes a Muslim he shall remain wasiyy as was the case with the minor.
Sháfi`ís say: Wasiyy must be just. Málikís, \anafís , and later Imámís say: Honesty and trustworthiness are enough as a condition because justice here is a mean but not an end goal. Thus if the wasiyy performs his mission as desired, then the mission id fulfilled. [Imámís disagree amongst themselves: Should Justice be a condition in the Wasiyy? The famous is the affirmative answer. Muhaqiqun however require just honesty and trust. A third opinion require that he is not a Fasiq. The best view is the middle position because of the generality of the legal proofs concurring the just person etc. Outside these proofs is dishonesty because the actions of a dishonest will not fulfill the purpose of the moosi and harms the handicapped.] \anbalís say: If the wasiyy is infidel, the judge shall appoint an honest person to share the role with him. This opinion agrees with what was reported in vol.2 of Minhaaj al-Saaliheen by al-Seyed al-Hakeem where he stated: “If infidelity is to be known of him, an honest person shall be appointed with him to prevent him from carrying on dishonest actions. If that was not possible, then he shall be replace.”
In al-Fiqh ala al-Madhahib al-Arba’ah, vol. 3, chapter al-Wasiyyah; it is mentioned that \anafís , Málikís, and Sháfi`ís set as a condition the ability of the wasiyy to carry on the determined mission. Allamah al-Hilli says in his al-Tadhkirah: It appears according to the school of thought of our scholars –meaning Imámís- the permission of appointing as a wasiyy someone who is incapable of carrying on his duty and it is up to the judge to make up for such shortcomings. In other words, the judge may undertake the actions himself or appoint an honest and capable person to do it.
Refusal of the Wisayah
For the Moosi the right to resend the wisayah, and for the Wasiyy the right to refuse it as long as he tells the moosi about the refusal, because the such Wasiyyah ‘ahdiyyah is permitted given the mutual consent. Jurists disagree whether it is possible for the wasiyy to refuse the wisayah without informing the Moosi. Imámís and \anafís say: The wasiyy cannot resend the wisayah after the death of the moosi no matter what. During his life time, it cannot be returned unless told.
Sháfi`ís and \anbalís say: The Moosi can resend the wisayah any time without any condition. In other words he can resend it before the acceptance or after, during the lifetime of the Moosi, after informing the moosi or without, or after his death also. [al-Mughnee, vol. 6, chapter al-Wasiyyah]
Wasiiya for two
Jurists agree that the dying person has the right to appoint two or more guardians. If he decrees that each of the4m is independent in his action, than his decree shall be valid. It shall be valid also if he decrees that they should work together and does not leave to one of them the choice of working on his own. Jurists disagree regarding the case where no decree in that regard is determined.
Imámís, Málikís, Sháfi`ís , and \anbalís say: Neither of them shall have the right to work on his own in any matter. If they disagree, the judge will force them to agree, if that did not happen, then the judge shall replace them.
\anafís say: Each one of them shall work on seven things separately: The funeral of the deceased, payment of his debts, the execution of his wills, the return of the borrowed things, the purchase of the necessities like clothes and food for the minor, accepting gifts on his behalf, and settling disputes raised for him or against him because it is hard to agree on doing these things together but not doing it in time would cause harm, thus it is permitted to undertake it separately. [Waseelat al-Najat, by Abu al-Hassan from the Imámi fiqh, and al-Mughnee, vol.6, chapter al-Wasiyyah]
He says in al-Waseelah: If one of the Wasiyyain dies, or his stricken by insanity or anything that necessitates the voiding of his wisayah, the second will be the sole wasiyy. It is not required to add another person.
In al-Mughnee it say: The judge must add an honest person because the moosi did not like the opinion of only one of them. There is no different opinion concerning this except from the colleagues of al-Shafi’ee.
If the two die at the same time, or something happened to them requiring their resignation/firing, can the judge appoint two people in their place or just one? There is a disagreement: The authentic is that the judge must consider the welfare. If that requires tow, then he shall do so. Otherwise, one shall be enough. The important thing is to fulfill the wasiyyah as determined. The appointment of multiple guardians is usually a result of the worry of the moosi about the handicapped, or because of a friendship between him and the wasiyy. No matter how much doubt we cause, we will not doubt that if the wasiyy dies -be he one or more- it will be considered as if there were no wasiyy at all to start with.
Imámís, Sháfi`ís and \anbalís on what was reported on Ahmad say: The wasiyy cannot delegate the issue of wisayah to someone else without the permission of the moosi.
\anafís and Málikís say: The wasiyy can delegate the wasiyyah to someone else.
Wisayah concerning marriage
Jurists disagree: Can the guardian makes a wisayah concerning the marriage in such a manner as to say to the wasiyy: “I appoint you wasiyy on the marriage of my daughter so-and-so or my son so-and-so?”
Malik says: That is permitted.
Ahmad says: If the father explicitly indicate a particular husband, the wisayah shall be valid. Otherwise it is not.
Sheykh Abu Zuhrah reports in his book al-Ahwal al-Shakhsiyyah, chapter al-Wilayah that the majority of the scholars do not permit wisayah in the effect of marriage. It is the same opinion adopted by the Imámís.
Confirmation by the Wasiyy
If the wasiyy confirm that the deceased owes something, then such confirmation shall not effect the rights of the minor nor the rights of other heirs. Because the recognition of the rights of others in case of dispute makes the wasiyy a witness bound by the rules of the witness as long as he is not one of the parties in dispute.
If the wasiyy bear witness in favor of the children or in favor of the deceased, his testimony shall not be accepted, because he is confirming for himself regarding a thing that he is able to deal in it.
Assurance of the Wasiyy
If some thing disappears while he is dealing as a wasiyy, he is not liable as long as such loss is not caused by shortcoming or unfair action from his side. If the minor becomes an adult and accuse the wasiyy of infidelity or shortcoming, the minor must provide proof, and the wasiyy shall take oath, because the wasiyy is honest bound by the tradition saying: “The honest shall only take the oath”.
It is the right of any person to bring the claim that the wasiyy is infidel or muqassir, given that he is sincere and that his intention in bringing such a claim is for the sake of God. But if it is established that by bringing such claim he only intends to harm and ..XXX to the wasiyy because of an animosity between them, then his claim shall not be considered.
If a man dies without wasiyyah, and it was not possible to return to a judge, it is permitted to an honest Muslim to take charge of the affairs based on the best interest especially in the things requiring immediate attention. The judge must then approve his actions and cannot void them.
Confirmation of the Wasiyyah
Jurists agree that wasiyyah effecting money or use can be validated by providing to just men as witnesses, or a man and two women amongst the just Muslims. That in accordance with God’s saying: “And use to men as witnesses amongst your men, if they were not men, then a man and two women, amongst you wish from the witnesses.” They disagreed concerning whether to accept two men witnesses from the people of Dhimmah in order to confirm the wasiyyah.
Imámís and \anbalís say: The testimony of the people of the Book concerning wills related to travel shall be accepted if there are no others in accordance with His words: “O You who believe, a testimony amongst you if one is to die during the making of a will; two just men amongst you or two who are not amongst you if you were traveling and died amidst.” [al-Ma’idah, 106]
\anafís , Málikís, and Sháfi`ís say: The testimony of non-Muslims shall not be accepted be it concerning wills or concerning other things. They argued that what is meant by God’s saying “min gharikum” is who are not amongst your relatives not who are not amongst your religion. [al-Mughnee, vol. 9, chapter al-Shahadah]
Sháfi`ís , \anbalís , and Imámís say: Transfer of wealth can be done with one witness and an oath.
\anafís say: One witness and an oath shall not be enough to make a ruling. [al-Mughnee, vol. 9, chapter al-shahadah, and al-Jawahir, bab al-Shahadah]
Imámís say: One quarter (¼) of the wealth can be transferred using the testimony of one woman, half (½) of it using the testimony of two women, three quarters (¾) based on the testimony of three women, and the whole based on the testimony of four given they are just in all cases. This ruling is particular to the Imámís alone using the authentic traditions reported from ahl al-Beit.
This is concerning wasiyyah in money or use. Wisayah however can be confirmed only based the testimony of two just Muslim men. Thus the testimony of the people of the book, nor that of singular or collective testimony of women, nor the testimony of one man and an oath. This by consensus.
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