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.
TABLE OF CONTENTS
Abstract
Table of Contents
Table of Cases
Table of Statutes
CHAPTER ONE:
GENERAL INTRODUCTION
1.0.0 Introduction
1.1.0 Background to the Study
1.2.0 Aims and Objectives of Study
1.3.0 Focus of Study
1.4.0 Scope of Study
1.5.0 Methodology
1.6.0 Literature Review
1.7.0 Conclusion
CHAPTER TWO
2.0.0 Introduction
- Historical Background of Will Under Islamic Law
2.1.1.0 Nature of Will in Pre- Islamic Era
2.1.1.1 Nature of Will in Post – Islamic Era
2.2.0 Definition of Will in Islamic Law
2.2.1.0 Essential Elements of Will Under Islamic Law
2.2.1.1 The Testator (Al- Moosiy)
2.2.1.2 The Beneficiary (Al Moosiy Lahu)
2.2.1.3 The Subject Matter of Will (Al Moosiy Bi- Hi)
2.2.2.0 The Capacity of the Testator
2.2.2.1 Infancy
2.2.2.2 Insanity
2.2.2.3 Intoxication
2.2.2.4 Mistake, Duress and Coercion
2.2.3 Formalities (Seegha)
2.2.4 Witnesses
2.3.0 Conclusion
CHAPTER THREE
3.0.0 Introduction
- Historical Background of Will Under Common Law
3.1.1.0 Nature of Will at Common Law
3.1.1.1 Nature of Will under the Statute
3.2.0 Definition of Will under the Common English Law
3.2.1.0 Essential Element of Will in Common Law
3.2.1.1 The Testator
3.2.1.2 The Legatee
3.2.1.3 The Subject – Matter of Will
3.2.2.0 Capacity of the Testator
3.2.2.1 Infancy
3.2.2.2 Insanity
3.2.2.3 Infirmity or Natural Weakness
3.2.2.4 Mistake, Fraud, Duress, Coercion and Undue Influence
3.2.3 Formalities
3.2.4 Witnesses
3.3.0 Conclusion
CHAPTER FOUR
COMPARATIVE ANALYSIS OF WILL UNDER ISLAMIC AND ENGLISH LAWS
4.0.0 Introduction
4.1.0 A Comparative Analysis of Historical Background
4.1.1 A Comparative Analysis of Definition
4.1.2 A Comparative Analysis of Essentials
4.2.0 Muslim Wills, and English Law: An Examination of Yunusa vs.
Adesubokan
4.3.0 Conclusion
CHAPTER FIVE: CONCLUSION
- Recommendation
- Conclusion
CHPATER ONE
GENERAL INTRODUCTION
- .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
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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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
