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  • Main section : General Details : .

        • Sub section : Other Topics for Hajj .

              • Topic : Making a will regarding Hajj .

Making a will regarding Hajj

Making a will regarding Hajj


If a person on a deathbed has an obligation to perform a pilgrimage and has adequate means, he must make sure that it will be performed after his death, even by directing in his will and in the presence of witnesses. However, if he has no adequate means but thinks somebody will donate for his pilgrimage he must direct that in his will. If he dies, one must be performed from his gross estate as must also be done if he has made a general direction about it without qualifying that its expenses be defrayed from his bequeath able one-third. However, if he directs that the pilgrimage be performed from his one-third and the expenses can be met from the one-third of the estate, then the expenses must be paid for from that portion and must take precedence over all other directions in the will. If the bequeath able one-third of the estate is insufficient to meet the expenses of the pilgrimage, the balance must be defrayed from the entire estate.

 It has been said that if a person dies without having performed the obligatory pilgrimage but leaves a deposit with a person who fears that if he paid the deposit to the heirs, they will not have the obligatory pilgrimage performed on behalf of the deceased, it is obligatory on that person to perform the pilgrimage himself on behalf of the deceased and pay the heirs only the balance, if any, left after meeting the expenses of the pilgrimage. However, all this is arguable.

 If a deceased dies without having performed the obligatory pilgrimage and leaves debts and liability of khums and zakaah and his estate is not sufficient to discharge all these obligations, then if the property on which the khums and zakaah became payable is available, the khums and zakaah must first be paid from it. If there is khums and zakaah still payable, then the pilgrimage will take precedence over their settlement but the settlement of debts takes precedence over the pilgrimage.

 
 If a deceased dies without having performed the obligatory pilgrimage, it is not permissible for the heirs to spend for the estate without first meeting the expenses of the pilgrimage, whether the estate is sufficient to meet the expenses or not. However, there is no objection relating to transactions made after provision has been made for the expenses of the pilgrimage.

If a deceased dies without having performed the obligatory pilgrimage and his estate is not sufficient to meet the expenses of having it performed, the available assets must be applied towards the repayment of debts, khums and zakaah and the balance be distributed among the heirs. It is not obligatory on the heirs to supplement the expenses of the pilgrimage from their personal property.

 If a deceased dies without having performed the obligatory pilgrimage, it is not necessary to pay for the expenses of the pilgrimage from the country of the deceased. It is sufficient to pay from the meeqaat. Indeed, it is sufficient to appoint an agent from the meeqaat closet to Makkah. As a matter of high precaution, if the estate is large, it is better to pay for the expenses from the country of the deceased. If the estate is very large and the heirs have decided definitely to have the pilgrimage performed, then expenditure from the estate is permissible. This is also the rule in respect of the debts of the deceased. However, if the cost from the country of the deceased is higher than the cost from the meeqaat, the share of the young heirs must not be utilised to meet the cost.

 If a deceased dies without having performed the obligatory pilgrimage, it is obligatory to have it performed in the year of the death. If it is not possible to find an agent from the meeqaat in that year, it is obligatory to send an agent from the country of the deceased and defray his expenses from the gross estate. It is not permissible to delay it to the succeeding year even if it is known that in the following year, it will be possible to engage an agent from the meeqaat. However, if the cost from the country of the deceased is higher than the cost from the meeqaat, the share from the young heirs must not be utilised to meet the cost.

 
 If a deceased dies without having performed the obligatory pilgrimage and it is not possible to obtain an agent at the ordinary fee, it is obligatory to engage one even at a higher than the usual remuneration and defray the expenses from the gross estate. It is not permissible for the heirs to postpone the pilgrimage to the following year even if some of them are young. However, if the cost from the country of the deceased is higher than the cost from the meeqaat, the share of the young heirs must not be utilised to meet the cost.

 If some of the deceased persons heirs consider that there was the obligation on the deceased to perform the pilgrimage and some do not, it is not obligatory on those who consider so to have the pilgrimage performed except to the extent of their shares of inheritance. If necessary, in the ultimate, they must litigate those who did not consider so in order that their shares in the estate are also utilised to defray the expenses. The same rule applies if there is a disagreement on a question of debt. However, if the shares of those who consider so are not adequate to meet the expenses of the pilgrimage, it is not obligatory on them to subsidise the deficit from their personal properties.

 If a person dies without having performed the obligatory pilgrimage, and a person performs one on his behalf gratuitously, it is not obligatory on the heirs any longer to have one performed themselves and the cost that would have been incurred on the pilgrimage will revert to the heirs for distribution among them. However, if the deceased had directed that the pilgrimage be performed from his bequeath able one-third, the cost that would have been incurred on the pilgrimage will not revert to the heirs but should be spent on some good cause or alms in his name.

If a person dies without having performed the obligatory pilgrimage but directs in his will that an agent be appointed from his town to perform one, then it is obligatory to do so. However, the excess of the remuneration over what would have been paid if the agent was appointed from the meeqaat will be met from the bequeath able one-third of the estate. If, in the will, he directs that the pilgrimage be performed without more, then it is sufficient to appoint an agent from the meeqaat unless he expresses an intention that the agent be appointed from his town, for example by fixing a sum for the pilgrimage which would equal the remuneration for the agent from the town.

If a deceased directs in his will that the agent be appointed from his town but the executor or heir appoints one from the meeqaat, the appointment is invalid, if the remuneration was being paid from the estate of the deceased. However, the obligation of the deceased will be discharged by the performance of the agent.

 If a deceased directs in his will that an agent be appointed to perform a pilgrimage from another town or country, for example, from Najaf, it is obligatory to act on it and the expenses in excess of what would have been payable to an agent appointed from the meeqaat will be met from the bequeath able one-third of the estate.

 If a deceased directs in his will that an agent be appointed to perform an obligatory pilgrimage on his behalf and fixes the remuneration, it is obligatory to act upon it. The remuneration should be paid from the gross estate if it does not exceed the usual remuneration, but if it does, then the excess must be borne by the one-third bequeathable portion.

If a deceased directs in his will that an obligatory pilgrimage be performed on his behalf from an identified property and it is in the knowledge of the executor that there is liability of khums or zakaah on the property, these must first be settled from the property. The balance should then be applied towards the expenses of the pilgrimage. If it is not sufficient to meet the expenses, the deficit must be subsidised from the gross estate if the obligation of the deceased was for Hijjatul Islam, otherwise the balance must be spent in good cause of the kind in which the deceased would have wished to donate.

If it becomes obligatory to appoint an agent to perform an obligatory pilgrimage on behalf of a deceased person and the one on whom it became obligatory delays the appointment so much that the property from which the appointment would have been made is lost, he is personally responsible and it is obligatory on him to appoint an agent from his personal property.

 If it is known that the pilgrimage had become obligatory on the deceased but it is doubtful if he had performed it, then it is obligatory to have it performed on his behalf and its expenses must be met from the gross estate.

The obligation of the deceased is not discharged by the mere appointment of an agent to perform a pilgrimage on his behalf. If it becomes known that the agent did not perform the pilgrimage for good reason or not, it is obligatory to appoint another agent and meet the expenses from the gross estate. If the original agent was paid from the estate, it is obligatory, if possible, to recover the sum from him.

 If a person volunteers to become an agent and is prepared to charge a lesser than usual remuneration, he must be appointed if the payment is being made from the estate. Taking into account the size of the estate, an agent must be appointed on the basis of his respectability and nobility and for this purpose it is permissible to pay a higher remuneration.

Whether the appointment of the agent is obligatory from the country of the deceased or meeqaat is determined by the mujtahid followed by the heir or the heir's ijtihad' and not of the deceased. If the faith of the deceased was that it was obligatory to appoint an agent from his country but that of the heir is that it is permissible to appoint one from the meeqaat, it is not obligatory on the heir to appoint one from the country of the deceased.

If the pilgrimage had become obligatory on a deceased who does not leave any estate, it is not obligatory on the heir to appoint an agent; however, it is recommended specially for his relatives that they do so.

If a deceased directs by his will that an obligatory pilgrimage be performed on his behalf and it becomes known that it was Hijjatul Islam, then the expenses must be paid from the gross estate unless he has expressly directed that the expenses be borne from the bequeathable one-third. If it becomes known to the one directed that the pilgrimage was other than Hijjatul Islam or if there is doubt on the matter, then the expenses must be paid from the one-third.

If a deceased directs in his will that an obligatory pilgrimage be performed on his behalf and names the person to be appointed as the agent, then it is obligatory to comply with the direction. If the agent does not accept the appointment except for a higher than the usual remuneration, the excess must be borne by the one-third portion of the estate if the pilgrimage was Hijjatul Islam.

 If a deceased directs in his will that an obligatory pilgrimage be performed on his behalf and fixes the sum to be paid to the agent but the sum is such that it is not accepted by anyone, then if the obligation of the deceased was for Hijjatul Islam, it is obligatory to make up the difference from the gross estate. If it was not for Hijjatul Islam, the sum fixed for the remuneration must be used for a good cause of a kind in which the deceased would have wished to donate.

 If a person sells his house for a sum and makes a condition with the purchaser that he should spend the sum on the performance of an obligatory pilgrimage after his death, then upon his death the sum will form part of his estate. If the pilgrimage to be performed was Hijjatul Islam, the condition becomes operative and it is obligatory to spend the sum on the remuneration for the pilgrimage if it does not exceed the usual remuneration. If it does, then the deficit will be met from the one-third of the estate. If the pilgrimage was for other than Hijjatul Islam, the condition is still valid and the whole remuneration will be paid from the one-third. If the one-third is not sufficient to meet the expenses, the condition is not operative in respect of the shortfall.

 If a person donates, for example, his house to another on the condition that he should perform a pilgrimage on his behalf after his death, the condition is valid and operative. It ceases to be the property of the donor and will not form part of his estate after his death even if the pilgrimage is optional and the testamentary rules will not apply. The same rule applies to a transaction in which the owner of the house passes ownership to another so that after his death the other should sell the property and spend the proceeds to have a pilgrimage performed for him. In such a case, the condition is valid and operative even if the pilgrimage is optional and the heirs have no right in the property. If the donee fails to fulfil the condition, the right in the property does not shift to the heirs but to the executor or a mujtahid and if he cancels the transaction, the property reverts to the estate of the deceased.

 If an executor dies and it is not known whether he appointed an agent before his death, it is obligatory to appoint an agent from the estate if the pilgrimage is Hijjatul Islam and from the one-third if it is not. If the executor had taken possession of property to expend on the pilgrimage and it is available, it should be repossessed. If there is a doubt that the executor paid the agent from his property and then reimbursed himself from the property of the deceased and such property is not available, the executor is not responsible as there would be doubt that it may have been lost without being wasted.

If the property is lost in the hands of the executor without waste on his part, he is not responsible and an agent must be appointed from the remainder of the estate if the pilgrimage is Hijjatul Islam and from the one-third if not. If the remainder had already been distributed among the heirs, a sum sufficient for the remuneration of the agent should be recovered from them in the proportion of their shares. The same rule applies if a person is appointed an agent and dies before the performance of the pilgrimage without leaving any estate or if it is not possible to recover from his estate.

If the property is lost in the hands of the executor before the appointment of an agent and it is not known if it was lost by reason of the negligence of the executor, it is not permissible to exact compensation from the executor.

If a deceased directs in his will that a certain amount be spent on a pilgrimage other than Hijjatul Islam and there is doubt that it is in excess of the bequeath able one-third, it is not permissible to spend the whole of the amount without the consent of the heirs.
 

  Print || Tell a friend || Add a comment || Date : 2014/05/07 || Readers : 2743





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