Dell executed a will in 2013 and his will established trusts to distribute his property after his death. For Dell's will to be valid, it must meet the five requirements under the Wills Act 1959: 1. Dell must have been of age of majority, which is 18 years old in Malaysia. 2. The will must be in writing on a permanent material. 3. Dell must have signed the will, or a third party under his direction. The signature must be acknowledged by two witnesses present at the same time. 4. The two witnesses must attest the will in Dell's presence. 5. Dell must have had mental capacity and not been influenced by delusion at the

1. PART B
QUESTION 1a)
According to Section 2 of Wills Act 1959, a will is means a declaration intended to have
legal effect of the intentions of a testator with respect to his property or other matters which he
desires to be carried into effect after his death and includes a testament, a codicil and an
appointment by will or by writing in the nature of a will in exercise of a power and also a
disposition by will or testament of the guardianship, custody and tuition of any child.
Subsection 2 of this section also stated that this Act is not applicable to wills of persons
professing the religion of Islam whose testamentary powers shall remain unaffected by
anything in this Act. Applying to the question, Dell executed a will in 2013 and he is a non-
Muslim. Thus, Wills Act 1959 applies to his will.
Dell’s will is a testamentary will where it established trusts for the distribution of his
property. In order for the will to be valid, it must be created in compliance with five
requirements that are stated in the Wills Act 1959.
First requirement is the age of majority. According to Section 4 of the act, a will made
by a minor is not valid. A person must have attained the age of majority, which in Malaysia is
18 years old under Section 2 Age of Majority Act, in order to create a valid will. Nevertheless,
privilege wills which is a will specifically created by those protecting the country as described
in Section 26 is excluded from this requirement as they are not bound by the formalities under
the Wills Act.
Second requirement is that generally, the will must be made in writing as to prevent
fraud and serve as evidence of the testator’s wishes according to Section 5 (1) of the act. Writing
can be anything that is handwritten by pencil or pen, printed or typewritten. In the situation
where the will is written partly in pen and partly in pencil, the court will presume that the one
in pencil as deliberative only and will not be admitted to probate as established in Re Bellamy’s
Goods. The case Re Berger also established that the will must be made in any language that
can be understood or if it is in code, can be deciphered by other. However, a will cannot be
written in secret language. A will also must be written on a permanent material. In Hodson v

2. 1
Barnes, a will was written on the surface of an empty egg shell and court accepted the will as
valid. Means that will can be written on anything as long as the material is permanent.
Next requirement is the will must be signed by the testator at the foot or end as stated
in Section 5 (2). The general rule in Re Bean is where there is no signature, the will is invalid
and only when testator sign the will, it will be operative. The will must be signed with the
intention to give legal effect to it and not be signed under the influence of alcohol, duress,
coercion, fraud, insanity or unconsciousness. The signature of the testator must be
acknowledged by the testator himself in the presence of two witnesses who are present and
aware at the same time. In Brown v Skirrow, a will was held to not properly been attested as
the testator signed in front of one witness while the other witness was serving a customer and
was unaware of what was going on. The witnesses, during the time of acknowledgement must
also see the signature or have the opportunity of seeing it without being covered and
acknowledge by words or conduct.
Still, the will may be signed by a third party under the direction of the testator, provided
that it is stated in the will that a third party signed on the testator behalf. In B Clarke, it was
stated that the testator must be in the right frame of mind and understand what he was doing
when he ask a third party to sign on his behalf. The signature also does not necessarily need to
be full as in Re Chalcraft where the testatrix was so ill and only managed to write part of her
name before she become unconscious, the court held the will to be valid. There are also other
methods of signing that has been held to be valid such as by a thumb print, an assumed name
and a stamped name.
Fourth requirement is the attestation of witness. According to Section 5 (2), at least two
witnesses are required to attest the will. Attestation is required to authenticate the testator’s
signature. Witnesses need not to sign the will in the presence of one another but must do it in
the presence of testator of the will. The testator must be present mentally and physically when
the witnesses sign the will. if the testator is insensible before both witnesses have signed, the
will is invalid. The testator also must either see the witness sign or have the opportunity of
doing so if he had chosen to look. After the testator has signed or acknowledge his signature in
the presence of both witnesses, present at the same time, the witnesses must the subscribe the

3. 2
will in the testator’s presence. In Re Colling the testator asked a nurse and another patient to
witness his signature. Unfortunately before he manage to complete his signature, the nurse was
called away. When the testator completed his signature, only the patient was present ad signed
as witness. When the nurse returned, the testator and the patient acknowledge their signature
and the nurse added hers. The attestation was held invalid as both witnesses did not subscribe
to the will after the operative signature of the testator.
Witnesses should be able to testify in support of the execution of the will. Section 8 of
the act stated that a will is not being invalidated by reason of incompetency of any attesting
witness at the time of its execution or at any time afterwards. Therefore, the witness must be a
mentally sound adult who can see and hear. Drunkards, illiterate and people of unsound mind
cannot be witnesses as they are not mentally present when the testator signs. A minor may be
a witness but the minor must be capable to understand the importance of witnessing the will’s
execution as they might have to testify.
The last requirement is mental capacity. Following Section 3 of the act, only persons
who are sound mind can make a will. Testator must at the time making the will had the legal
capacity to create the will. The testator’s capacity will not be questioned if the will does not
appear to be irrational and have been duly executed. However, if the testator’s capacity is
challenged, the burden is on the party propounding the will to prove the testator’s competency.
For more than 130 years the test for mental capacity to make a will inevitably starts with the
citation of the judgement in the case Banks v Goodfellow [1869 -70] LR 5 QB 549. The
essence of the testamentary capacity test is to see the testator’s ability to comprehend rather
than to make decisions.
The applications of the test provides three main points. First, a testator must understand
the nature of the will and its effect. This does not require a full understanding of the legal
terminology of the will, however a broad understanding of the wills effect is essential such as
what the beneficiaries will receive, that the will only comes to effect after his death, it can be
revoked and many more.
Secondly, a testator must have some idea of the extent of the property of which they are
disposing. This need not be an inventory which breaks down into an intricate detailed list, but

4. 3
the testator must appreciate the extent of their wealth. In Wood v Smith, where upon making
the will, the testator said he had investments worth RM17,000 whereas the actual value was in
excess of RM105,000. Court held the testator lacked the testamentary capacity as he was
seriously confused as to the extent of his property.
Thirdly, a testator must be aware of the persons for whom he would usually be expected
to provide (even if he chooses not to) and must be free from any delusion of the mind that
would cause him reason not to benefit those people. In Harwood v Baker, the testator was held
to have lack testamentary capacity as he only has enough recollection of his wife but not other
family members.
In addition, the testator must not be influenced by delusion. A testator is delusional if
he holds a belief on any matter which no rational person could hold and which cannot be
permanently eradicated from his mind by reasoning with him. As in the case of Banks v
Goodfellow, the testator suffered from Paranoid Schizophrenia and thought a grocer who was
actually dead was molesting him. However, his will was held valid as the delusion did not affect
the will. Different from Dew v Clark where the testator’s will was held invalid as he only left
a small gift to his daughter because he thought she was “Satan’s special property”. Besides
delusion, testator also cannot be unsound mind. If at the time testator creates a will but was
suffering from a disease so deficient in memory that he was oblivious to the claim of his
relatives, then the will is invalid. But, if the will can be proven was made during lucid interval,
it will be found valid. In Re Ng Toh Piew, the testator made the first will in 1947 when he was
sound mind and made the second will in 1949 at the time where he was extremely ill and failed
to provide to his son as he had done in the first will. He also told the witness that he had no son.
Thus, the second will was held to be invalid.
As the question is silent on all these facts, we may infer that Dell has satisfied all five
requirements and his will is valid.
There are five issues in the question. Each issue will be explained and be tackled one
by one to advise the executors on the validity of the testamentary dispositions.

5. 4
Before solving those issues, we have to know that there are few types of gift such as
specific gift, general gift, demonstrative gift, pecuniary legacy and residuary gift.
Specific gift is a gift of a specific or particular item or property. It can be divided into
legacy or devise. Specific legacy or also known as bequest is a gift of money or personal
property which is movable items. On the other hand, specific devise is a gift of a specified real
estate fully or part of the testator’s real estate which is immovable items. Generally, the testator
is taken to refer to his particular property at the date of the will. Means that only property stated
on the will can be passed. However, in Castle v Fox, it has been stated that if the words which
the testator uses are suited to pass property acquired by him after the date of will, such property
will pass. For an example, where a testator devises “all my house in Green Street, Ross” to R
and then acquires other houses in the same street, the newly acquired houses will pass under
that devise. Specific gift has two principles where it must be easily identified to be distinguished
from all other properties and there is “my” word that indicates that it is a specific gift. It
characteristic is the gift will form a specified part of the testator’s estate at the time of the death
and the specified part can be severed from the rest of the estate with a condition that as long as
the beneficiary does not predeceases the testator.
Moreover, general gift is a gift not from a particular item but out of something to be
provided out of the testator’s general estate and the gift need not form part of the testator’s
estate at the time of his death. As in the case of Bothamley v Sherson where a man gives $100
money or stock may not have either the money in which case the testator’s executors must raise
the money.
Next, demonstrative gift is a general gift which is directed to be given out of a particular
fund or property of the testator. Pecuniary legacy on the other hand basically a general legacy
of money given to the beneficiary where it does not specify which sources of the money should
be derived.
Lastly, residuary gift. It is defined as a gift from the remaining property after all debts,
liabilities, expenses and other expenses and other expenses have been paid and settled.
Residuary devise is the residue of the testator’s overall real estate after the specific devise has

6. 5
been satisfied. Under Section 19 of the Wills Act, it stated unless a contrary intention appears
by the will, such property as is comprised or intended to be comprised in any devise or bequest
in such will contained, which fails or is void by reason of the death of the devisee or legatee in
the lifetime of the testator or by reason of such devise or bequest being contrary to law or
otherwise incapable of taking effect, shall be included in the residuary devise or bequest
respectively, if any, contained in the will. it means where any gift has failed by reason of death
of beneficiary, unlawful gift or inoperative, the property shall be included in the residuary gift
unless otherwise stated in the will instruments.
First, for the first issue, in his will, Dell stated to give his wife, Daisy, his house in
Petaling Jaya. Dell indeed owned a semi-detached house in Petaling Jaya. However, five
months after the will was executed, he sold the semi-detached house and bought two units of
condominium in Subang Jaya from the proceeds of the sale. So, the issue that arise here is
whether Dell’s wife may claim the two units of condominium in Subang Jaya instead of the
semi-detached house in Petaling Jaya form Dell’s executor of the will.
The type of gift in the first issue falls under specific gift. The house mentioned in the
will is a specific device as it is a gift of a specified real estate where Dell stated, “to my wife,
Daisy, my house in Petaling Jaya”. Once Dell specified the house, as in Petaling Jaya, the house
can be easily identified and distinguished from his other properties. Dell also used “my” in the
will indicating that it is a specific gift.
However, problem arises when Dell sold the house in Petaling Jaya and bought two
units of condominium in Subang Jaya. This situation is different if we compared it to the case
of Castle v Fox as in the case the newly acquired house was in the same street. Here, the newly
bought condominiums were bought in Subang Jaya and not Petaling Jaya.
As the gift is a specific gift, the doctrine of ademption is applied here. This doctrine is
only applicable to specific gifts and when the property bequeathed under a will is no longer
come a part of the testator’s estate upon death. The doctrine can be seen in the Re Sykes’ case
where a gift referred to as “my piano” in a will was made. However, the testatrix then sold the
one she owned at the date of the will and replaced it with a more expensive one. It was held
that the gift failed as the piano as the date of her death was not the one referred to in the will.

7. 6
Her intention was to give the original piano on the date of the will, by replacing the piano, the
gift was adeemed. In the question, the gift mentioned in the will as “my house in Petaling Jaya”
was sold by Dell at the date of the will and is no longer available. Therefore, the gift towards
Daisy has been adeemed. Thus, Daisy would receive nothing under the will as the testator
cannot give the property mentioned specifically in the will.
Therefore, following Section 19 of Wills Act which states a gift which has failed shall
be included in the residuary gift, the two unit of condominiums in Subang Jaya will be included
in residuary gift instead of being given to Daisy.
As for the second issue, Dell stated in his will to give his daughter, Jane, RM100, 000
from his RHB Bank account. However, after his death, his bank balance only amount to
RM10, 000 instead of RM100,000. The issue that arises here is whether Jane may receive the
RM10,000 in Dell’s RHB Bank account.
The type of gift given to Jane is demonstrative gift as it was directed in Dell’s will to
give his daughter, Jane, RM100,000 from his RHB Bank account which is from a particular
fund. As it is demonstrative, doctrine of ademption cannot be applied here. Rather, we will look
into demonstrative legacies.
A demonstrative legacy shares characteristic of both general and specific legacies. In
Re Culbertson, demonstrative legacies is described as; “A legacy of quantity is ordinarily a
general legacy; but there are legacies of quantity in the nature of specific legacies, as of so
much money, with reference to a particular fund for payment. This kind of legacy is called a
demonstrative legacy: the testator, after making a positive gift, points out the particular fund
which he desires to have first applied, and which he supposes to be adequate for the purpose.
If the fund indicated is not adequate, the gift is intended to take effect nevertheless out of some
other property of the testator. Such a legacy is general in that if the fund is called in or fails the
legatee will not be deprived of his legacy, but will be permitted to receive it out of the general
assets; it is specific in that it will not be liable to abate with general legacies upon a deficiency
of assets, provided the fund from which it is primarily to be taken is not exhausted.”

8. 7
As can be seen in the question, the specified fund, Dell’s RHB Bank account, falls short
in providing RM100,000 to Jane. Referring to demonstrative legacies, executor of Dell’s will
may look into Dell’s other funds or assets. If exist, and it is enough to cover the deficiency of
his RHB Bank account, then the executor may use the other funds or assets to satisfy the will
to give Jane RM100,000.
The third issue is whether the sons of Peter and Kelly are entitled to the monies owned
by Dell and all Dell’s antique vases, respectively.
It has to be determined whether the shares given by Dell is a specific gift or general gift.
Specific Gift is a gift for a special item. It has two characteristic where it forms a special part
of the testator’s estate at the date of his death and the specified part of the testator’s estate can
be served from the rest of the testator’s estate. A precondition is that the beneficiary should
survived the testator in order to take the benefit, or else the gift will lapse as according to Elliot
v Davenport. The exceptions to the Doctrine of Lapse, whereby, a gift to a predeceased person
will not lapse if he left behind an issue. General Gift is a gift not of particular item but of
something which is to be provided out of the testator’s general estate. It need not form part of
the testator’s property at the time of his death. Section 18 of the Wills Act specifies that wills
should be construed to speak from the death of the testator. It is to take effect as it has been
executed immediately after the testator death unless a contrary shall appear by the will. Section
19 of Wills Act stated that if the will contains no residuary gift, the beneficial interest in the
property devolves upon the testator’s statutory next of kin. Exception to Section 19, is that by
the virtue of Section 25 of the Wills Act the gift to the beneficiary who predeceased the testator
will not lapse if he leaves behind an issue who will then be the donee of the gift. However,
there are limitations to section 25 of the Wills Act where the beneficiary must be the testator’s
child or issue, and not a person related by any other means, the beneficiary must leave an issue
to be the donee and not a person related by any other means, the issue must be alive at the time
of the testator’s death. In Re Whorwood, the testator wrote in the will “to Lord Sherborne and
his heirs my ‘Oliver Cromwell’ cup presented to our common ancestor…, for an heirloom.”
However, Lord Sherborne died after the testator made the will, and his eldest son became the
new Lord Sherborne. Held: The gift lapsed as the bequest was intended for whoever fulfilled

9. 8
the description at the appropriate time, despite the fact that the gift was to continue as an
heirloom.
The gift to Peter was all of Dell’s monies. It is a Specific gifts as it is of a specific and
particular item. It can be categories under Specific legacy as it is specific gift of money. Since
Peter died before Dell, the Doctrine of Lapse is applicable. Peter’s sons are able to receive the
gift since Peter is the son of Dell as provided in Section 25 of the Wills Act, where the
beneficiary must be the testator’s child or issue, and not a person related by any other means.
Next, the gift to Kelly was Dell’s antique vases. It is a Specific gifts as the use of the word “my”
indicates a Specific gifts. Since Kelly died before Dell, the Doctrine of Lapse is applicable.
Kelly’s sons are not able to receive the gift since Kelly is just an old friend of Dell and not his
next of kin as provided in Section 25 of the Wills Act, where the beneficiary must be the
testator’s child or issue, and not a person related by any other means.
In conclusion, Peter’s sons are entitled to all Dell’s monies as Peter is Dell’s son. Kelly’s
sons are not entitled to the antique vases bequeathed to Kelly even they are Kelly’s sons. Kelly’s
sons may receive the vases if there were an instrument allowing so.
The fourth issue is whether Ray or Rex are entitled to the Honda Jazz car.
It has to be determined whether the Honda Jazz given by Dell is a specific gift or general
gift. Specific Gift is a gift for a special item. It has two characteristic where it forms a special
part of the testator’s estate at the date of his death and the specified part of the testator’s estate
can be severed from the rest of the testator’s estate. A precondition is that the beneficiaries
should survive the testator in order to take the benefit, or else the gift will lapse. The exceptions
to the doctrine of lapse, whereby, a gift to a predeceased person will not lapse if he/she left
behind an issue. General Gift is a gift not of particular item but of something which is to be
provided out of the testator’s general estate. It need not form part of the testator’s property at
the time of his death. When there is ambiguity in determining the beneficiaries in the will, then
the equivocation principle will be applied. This principle is also called latent ambiguity and it
arises if a description of the object or the subject matter of the gift is applicable to two or more
persons or things. In the uncertainty of subject matter or object is illustrated in the case of

10. 9
Charter v Charter, the testator, by his will appointed ‘my son, Forster Charter’ as his executor
and gave him residuary estate. He also directed him to pay annuity and allow maintenance to
his mother ‘so long as they reside together in the same house’. The testator had a son named
Forster Charter, but this son had died some years before the testator made his will and he could
not be the son referred to. At the time the will was made, the testator had two sons, William
Forster Charter and Charles Charter. Probate was granted to William Forster Charter. Charles
applied for revocation on the ground that he, Charles, was the person named in the will. The
judge admitted evidence of the surrounding circumstances when the testator made his will. The
court found out that Charles was living at home with his parents and working on the testator’s
farm, that William had lived away from home for some years and seldom visited the testator,
and that the testator did not call him ‘Forster’ but always ‘Wiliam’ or ‘Willie’. The judge
decided in favour of Charles. William appealed to the House of Lords. The four members were
evenly divided. Lord Chelmsford and Lord Hatherly thought the will was not uncertain or
ambiguous. But Lord Cairns and Lord Selborne upheld the decision of the judge. They
considered that the provision in the will under which the executor was directed to pay the
annuity and follow for maintenance to the testator’s widow, so long as they reside together in
the same house, did not apply to William and so there was uncertainty or ambiguity. Once
uncertainty or ambiguity was established, evidence of surrounding circumstances of the testator
at the time he made the will could be admitted under the armchair principle and this evidence
pointed clearly to Charles and Charles won.
The gift to Dell’s nephew is a Honda Jazz car. It was to be given to Blue. Dell had two
nephews, Blue Ray and Blue Rex. It is assumed that, Ray has been residing in London for the
past 5 years and Rex lives nearby Dell’s house. Uncertainty or ambiguity appear in determining
who the beneficiary of the will is. By applying the armchair principle and the assumed evidence
of circumstances, together with the case of Charter v Charter, obviously Ray was out of Dell
sights for the past 5 years and it is hard to see from the eye of a reasonable person how Ray
could be the nephew Dell referred to in his will as he was way out of bound and distanced from
Dell. While Rex, lives nearby Dell’s house and the nephew
Dell referred to may fall on him because he is the person whom nearer to Dell than Ray

11. 10
To conclude, the Honda Jazz car should be given to Rex after evidence of surrounding
circumstances been apply by the virtue of the Armchair Principle in the case of Charter v
Charter.
The fifth issue is whether Dell’s brother may receive the gold watch.
Failure of gifts is due to uncertainty and the gift is not readily ascertainable. Doctrine
of Ademption occurs when the property or asset bequeathed under a will is no longer part of
the testator’s estate at the time of death. For example, the item may have been given away, sold,
destroyed or ceased to exist, or replaced. This only applies to specific gifts. The general rule to
the doctrine is if the testator has sold, ceased to exist, given away or replaced the subject matter
of the gift, then the gift has been adeemed. Thus, the beneficiary would receive nothing under
the will as the testator cannot give that which he does not have. In the case of Re Sykes, gift
referred to as “my piano” was made. However, the testatrix then sold the one she owned at the
date of the will and replaced it with a more expensive one.it was held that the gift failed as the
piano at the date of her death was not the one referred to in the will. Where her intention was
to give the original piano, by replacing it, the gift was adeemed. This Doctrine of Ademption
would not be applicable to general legacies. A General gift is a gift not of a particular item, but
of something to be provided out of the testator’s general estate. The gift need not form part of
the testator’s estate at the time of his death. In the case of Bothamley v Sherson, a man who
gives $100 money or stock may not have either the money, in which case the testator’s
executors must raise the money. So it is the executor’s duty to purchase the gift provided out
of the testator’s general estate. For example, a Lamborghini was to given to the beneficiary.
The personal representatives or the executor would be under a legal duty to either purchase a
Lamborghini or compensate the beneficiary with a sum of money which represents the value
of the Lamborghini.
The gift to Dell’s brother is a gold watch. However, Dell never owned a gold watch. The
Doctrine of Ademption may not be applied as the gold watch is a general legacy, because he
did not specifically wrote ‘my gold watch’ but instead ‘a gold watch’ hence it is a General gift.
As referred to the case of Bothamley v Sherson, Dell’s executor has the duty to purchase the
gold watch provided out of the Dell’s general estate.

12. 11
Therefore, to conclude, Dell’s brother may receive the gold watch as it is the executor’s
duty to purchase the gold watch provided out of the Dell’s general estate.

13. 12
QUESTION 1b)
The issue is whether is whether Dell can distribute is assets according to Faraidh law as
a Muslim.
The ultimate rule of Faraidh is that, a non-Muslim are excluded from inheritance which
we can see in the case of Re Timah Bt Abdullah where it was stated that the non-Muslim next
of kin of a deceased Japanese woman who had converted to Islam could not inherit the property
of the deceased.
In Islam, there is a method of dividing inheritance called Faraidh as stated in the Quran.
It is acquired from someone who has passed away and leave a qualified heir to receive the
inheritance according to the Islamic Law after the deceased has been managed, the debts has
been settled and the will has been executed.
When a Muslim dies there are four duties which need to be performed. These are
payment of funeral expenses, payment of his/ her debts, execution his/ her will and distribution
of remaining estate amongst the heirs according to Shariah.
According to Islamic terminology, Faraid is the distribution of the estate of a deceased
Muslim whether the deceased left a will or otherwise before he died. The estate will be
distributed to the deceased person's heirs (such as children, wife, husband, etc) as per the
Islamic law. The assets to be distributed to the heirs are the remainder after deducting the
funeral expenses, the heirs' debts (tithe, vows or nazar, etc) and wills that is allowed by the
Islamic law or syarak (and usually not more that 1/3 of the total assets).
Muslims must follow all the commandments of Allah (SWT) as Allah the Almighty
says, "It is not for a believer, man or woman, when Allah and His Messenger have decreed a
matter that they should have any opinion in their decision. And whoever disobeys Allah and
His Messenger, has indeed strayed into a plain error." [Quran 33:36]

14. 13
The particular importance of the Islamic laws of inheritance is obvious from the verses
immediately following those verses giving specific details on inheritance shares, "These are
limits (set by) Allah (or ordainments as regards laws of inheritance), and whosoever obeys
Allah and His Messenger will be admitted to Gardens under which rivers flow (in Paradise), to
abide therein, and that will be the great success.” [Quran 4:13]
All Muslims are obligated to the distribution of inheritance under Faraid according to
the verses of authorities on the distribution of estate, with reference to verse 11,12 and 176 of
Surah an-Nisaa of the Holy Quran.
When a Muslim died, all of his property belongs to Allah SWT under faraidh law.
However, a Muslim is entitled to dispose 1/3 of his property to non-Qur’anic heirs and for waqf.
Non-Qur’anic heirs are those who are stated in Surah An-Nisaa, verse 11 such as spouse,
children, parents and grandchildren. These are primary or immediate heirs.
Secondary heirs are grandparents, brothers, sisters, uncles, aunts, nieces and nephews.
Under Islamic Law, the primary beneficiaries of a deceased person are his/her
immediate heirs (Qur’anic heirs). Qur’anic heirs are those who are stated in Surah An-Nisaa,
verse 11 and 12 such as spouse, children, parents and grandchildren. These are primary or
immediate heirs. The grandchildren that are entitled are only the son’s son or the son’s daughter.
Daughter’s children are not entitled even if the daughter is deceased.
In the absence of some or all of these heirs, the secondary beneficiaries become Heirs
under various conditions. Secondary heirs are grandparents, brothers, sisters, uncles, aunts,
nieces and nephews. In the absence of a particular heir (eg; Uncle) if and when he/she is entitled,
the children of that heir become eligible.
Other than what is listed as Quranic heirs, non-Qur’anic heirs such as friends, adopted
children or for charity, they cannot inherit the property by Faraidh. If the deceased Muslim has
executed a will on them, they will get the portion of 1/3 of the property. Property to be set as
waqf also included in the 1/3 portion. The rule is the testamentary disposition may not exceed
one-third.

15. 14
In the language of law, waqf means detention of a property so that its produce or income
may always be available for religious or charitable purposes. When a waqf is created, the
property is detained or, is ‘tied up’ forever and thereafter becomes non-transferable. When
Muslim a person who is working for charitable purpose under religious faith and sentiments
and for the benefit and upliftment of the society, has donate his property in the name of Allah
is called waqf.
A companion, by the name of Saad bin Abu Waqas said, “The Prophet of God came to
visit me during my ailment which had been aggravated during the Final Pilgrimage. I said to
him, “You see how sick I am. I have much property but have no heir except my only daughter.
May I give two thirds of my property in charity?” He said, “No.” I said, “Half of it?” He said,
“No.” I said “One third?” He said, “One third is too much, for to leave your heirs rich is better
than to leave them poor, begging of others. Nothing you spend seeking God’s pleasure but you
shall get a reward for it, even for what you put in the mouth of your wife.” This is the rationale
behind the portion of 1/3.
In Amanullah Hj Ali v Hajjah Jamilah, the testator’s disposition is invalid if it purports
to dispose more than 1/3 of his estate and it shall also be invalid if it is to benefit any of their
heirs above his share as prescribed by the Muslim law of inheritance.
In Shaikh Abdul Latif v Shaikh Elias Bux, a Muslim testator has power to dispose of
not more than one third of the property belonging to him at the time of his death, and the
remaining two-third must descend in fixed proportions to those declared to be Quranic heirs of
the testator.
To apply, by assuming the parties are Muslim stated in the will made by Dell if he is a
Muslim, there are parties such as Daisy as the wife, Jane as daughter, Peter as son, Kelly as an
old friend, Blue as the nephew and Dell’s brother.
Daisy is the spouse of Dell which makes her as one of the Qur’anic heirs as stated in
Surah An-Nisaa verse 11 and 12. Besides, Jane and Peter are the children of Dell and Daisy,
which subsequently made them as immediate heirs who will automatically get some portion

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of the two-third of Dell’s estate. Blue as the nephew and Dell’s brother on the other hand are
the secondary heirs of Dell. They will only entitle for some two-third portion of the estate if
Dell does not have any immediate heirs. Next, Kelly, being an old friend of Dell is entitle for
the 1/3 portion listed in the will as stated by Dell because Kelly is a non-Quranic heir of Dell.
To conclude, Dell does not have to make a disposition of his estate to his Qur’anic heirs
via wills as it will be automatically surrender under Faraidh law If Dell intended to give some
of his estate to his non-Qur’anic heir which in this situation would be Kelly, he can write a will
stating that he wanted to dispose 1/3 of his property to her.