Will; A Comparative Analysis Under Common And Islamic Laws

Project and Seminar Material for Law

Will; A Comparative Analysis Under Common And Islamic Laws


Abstract


The conceptual divergence in respect of the formation of a valid will under both Islamic and common laws will be examined and discussed. Starting from introduction which will introduce us to the general message of the work. The chapters therein have been divided into five.

Chapter one deals with the introduction as mentioned above, and chapter two will talk on pre and post Islamic era of Will.

Chapter three deals with Will under Common Law, its position in the common law as well as under the English statute. Chapter four on the other hand, deals with the analytical comparison of what has been discussed in both chapters two and three, while chapter five, as the last chapter will focus on the general remark, summary and conclusion.

In the Jahiliyah period, before the advent of Islam, Arabs dispose of their properties as they like, as no law concerning bequest or inheritance ever existed to guide them. They could make bequest in favour of any one, depriving their own heirs such as their children, wives and parents. But by the advent of Islam, the legal Quranic injunctions in respect of Will were revealed. These are that wasiyyah (Will) can be made only on 1/3 (one-third) of the entire estate; that no one can make a Will in respect of any legal Quranic heirs etc.

On the other hand the English concept of Will under the common law has also made it un-compulsory on a testator to include any provision for his wife and children, that he could make his will in favour of any person without limitation what so ever.

Under Islamic law, a testator in not bound to make a will in writing, neither the witness are bound to attest to it. A bequest in Islamic law may either be in writing or by words of mouth. In either case, it should at least be made before two witnesses. While under the common law, the testator must make the will in writing and signed in the presence of witnesses, who should also attest to it as prescribed.

Distinguishing feature in the area of capacity in term of age, in also a remarkable aspect which has been resolved in this research. Under the Islamic law, physical puberty is attained at the age of fifteen (15) or above. While under the common law, the Wills Act of 1837 provides that no will made by a person under the age of twenty-one (21) should be valid, exceptora few exceptions.

Further more, in Sharia, bequeathal property should not be something declared illegal or prohibited to possess, such as pigs, intoxicants etc. But under the English law, there is no such provision.

From afore analysis, we are able to establish that wasiyyah or Will under the Islamic law is of a divine nature, deriving its validity from the Holy Quran and tradition of the Holy prophet Muhammad (S.A.W).while will under the received English law is never of such divinity, gaining its origin and authority from Man-made arrangement, i.e. the Will Act of 1637.


Chapter One


General Introduction

1.0 .0 Introduction

The effect of the received English law on the recognized native laws and customs, on any country that has adopted English law as a source of law, is never a matter that could be swept behind a closed doors of secrecy. Hence, there is the need to juxtapose the received English law and the recognized laws of the land, and as well dichotomies between the duo/dual where necessary.

It is in this aspect that conflict may likely arise between the English law and native laws and customs.

Following the introductory chapter, is chapter two, which deals with will under Islamic law, whereby both pre-Islamic and post-Islamic testamentary disposition of property has been examined, proper definition of will in pretty given in this chapter. Subsequently, the basic essentials of a will under Islamic law are equally discussed.

A separate chapter in allotted for will under English law, i.e. chapter three. In this chapter, will at English law, as well as the position maintained under the English statutes are dully examined.

Definition of will is given in accordance with provisions of English law. Along side, the essentials of will under the English law are also discussed.

Will is an aspect where English law contradicts Islamic law1 which has been recognized as one of the legal cultures and therefore needs a comparative study. This, as reflected in the principle established in the case of AGBEBU V. BAWA2

Where it was held that “- – – Islamic law is recognized as one of the three legal cultures co-existing in Nigeria”.
In Islamic law, will have been sanctioned by both primary and secondary sources of Islamic law, i.e. the Quran and Sunnah, and the Ijma and Qiyas.

Similarly, in English law, will in recognized and has been described as a means of disposing of property, taking effect at the testator’s death, on the property which falls into his estate after his death, but meantime having no legal effect and remaining secret and revocable3. It is a mere expression of intention of the testator at the time it is made 4. Hence, in both Islamic and English laws, certain essentials are considered necessary for the validity of will.


1.1.0 Background to the Study

Basically, this project work tends to provide answers to questions that may likely arise on the creation of a valid will under both Islamic and English laws, through a comparative basis. Thus, this project proffers solutions in both Islamic and English laws to issues relating to: the position of law relating to will before and after the advent of Islam, the position of law relating to will at common law and the English statutes, definitions of will, essential elements of a valid will, the nature of will, similarities and disparities between Islamic and English laws on will etc. All are being resolved in this work, by comparative analysis.


1.2.0 Aims and Objectives of Study

The aims and objectives of this project work is 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 series injustices entertained by English will.


1.3.0 Focus of Study

This work is necessary because of the conflict of law usually generated by the effect of received laws on recognized laws of the land and vice-versa.

The consequential effect of ignorance of the law or the inability to have a true idea of the law relating to will comparatively, fortifies and justifies the attempt to embark on a voyage of discovery on the nature and creation of a valid will under Islamic and common laws. This, it is worthy enough to expend some Ink on the relevance of will, and therefore a comparative study of provisions on the essentials of valid will in both Islamic and English laws, will automatically clear the dust (doubt) on the position and the nature of application of the two laws.

Furthermore, the attitude of most modern days Muslims (Westoxicated) who tend to prefer the common law to Islamic law i.e. their impression in favour of English law on will. This may either due to ignorance of the dictates of Islamic law on Will, or weakness in Iman (faith).

It is therefore deemed necessary as a matter of expediency to enlighten these Muslims in a comparatives manner, the injustices manifested by common as related to Will and the unalloyed equality equity and justice embedded in Islamic law in respect to Will.


1.4.0 Scope of Study

This work is centered much on the nature or form a will takes, through a comparative approach of Islamic and English laws. The work is restricted to this area, for the convenience of the research and to have an intense and proper study in each particular area relating to law of Will, so as to produce a qualitative work and actual grasp of each particular concept.


1.5.0 Methodology

The method adopted in this work, is basically comparative. Materials are sourced from both primary and secondary sources of law, in both Islamic and common laws. The creation of Will under both laws are discussed separately and thereafter, comparatively analyzed.


1.6.0 Literature Review

Series of works by legal writers and academicians are resorted in this work, judicial opinions and statutory provisions are also consulted and reviewed.

On Islamic Law, literatures like; Fiqhu-s-Sunnah; by Sheikh Sayyid S.5, Al-Fiqihu-l-Wadi’h; by Dr. Muhammad Bakr I.6, The Practice of Muslim Family Law in Nigeria; by Ambali M.A.7, Shariah The Islamic Law; by Abdul-Rahman Doi8, The Islamic Law of Bequest; by Zaid A.M9 and Muhammadan Law: by Ali A.S.10. These series of work have discussed extensively in will, succeeded in establishing definition, nature, essentials and formalities of wil under Islamic law. But they have never attempted in their various work, a comparative study of will.

Similarly under common Law, literatures like; Will Act 1873, The Law of Succession; by David H.P.11, Principles of Family Law; by Cretney S.M.12, The Conflict of Law: by Dicey and Morris13, The Machinery of Succession; by Miller J.G.14 and Execution of Will and Procedure for Obtaining Letters of Administration in High Court; by Garba T.15, as he then was, Deputy Chief Registrar, High Court of Justice, Ilorin, among others, have also been examined.

These works on the other hand, have succeeded in discussing definitions, nature, essentials and formalities of will under the common law. Although they have never made any attempt on comparative work yet. This comparative work on will, under both laws, is therefore chosen as scope of this project work.


1.7.0 Conclusion

As the introductory aspect has given full details about what each chapter would entail, it also describes a vital position that Will is maintaining in both Islamic and English law. The aim makes clear, what constitute a valid Will, nature of Will and effect of Will not in compliance with the essential requirements of Will under both laws. It has as background, definition of Will, the position of both laws on Will, essential elements, similarities, disparities and the rest of them. However in essence, our major focus is to enlighten Muslims in a comparative manner, the injustices manifested by English law, and the unalloyed equity and justice in Islamic law.

The scope centers much on the creation of a valid will. The methodology adopted in basically comparative. And literature review enumerates series of material consulted.


Chapter Five


5.0.0 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.


5.1.0 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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