Will a Comparative Analysis Under Common and Islamic Laws

Will; a Comparative Analysis Under Common and Islamic Laws

Project / Seminar Material
Reference ID: PS-6199-TM

DEDICATION

This research material titled “Will; a Comparative Analysis Under Common and Islamic Laws” is dedicated to God for his enabling grace, and to all computer enthusiasts who contributed to make life a pleasant experience during my research documentation.

ACKNOWLEDGEMENT

I extend my sincere gratitude to all those who contributed to the completion of this project. Special thanks to my Supervisor (Name of your Supervisor), the Head of Department (Name of your HOD), the Lecturers in the department of Common and Islamic Law, Book Authors and Profound Scholars of existing or related project material on “Will; a Comparative Analysis Under Common and Islamic Laws” for their invaluable guidance, support, and expertise throughout the journey.

I am also grateful to your study area (mention any funding organizations, if applicable) for their financial assistance. This research would not have been possible without the encouragement and assistance of some stakeholders (mention any mentors, teachers, or colleagues). Additionally, I would like to acknowledge the understanding and patience of my family and friends during this endeavor. Your unwavering support has been a constant source of motivation. Thank you all for being part of this meaningful endeavor.

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.

Will; a Comparative Analysis Under Common and Islamic Laws

CHAPTER ONE

1.1 Introduction

… As a prelude to other parts of this study, this chapter will discuss the background upon which this study was initiated, the statement of problems that led to this study, the Aim and Objectives of the study. Others are Significance of the study, Scope of work, Research hypothesis and questions, Limitation of the study and Definition of technical terms.

…

CHAPTER TWO

2.0 Literature Review

2.1 Introduction

This chapter focuses on the review of related literature. A literature review includes the current knowledge as well as theoretical and methodological contributions to a particular topic. It documents the state of the art with respect to the topic you are writing. It surveys the literature in the topic selected. In this research work the literature review includes the …

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