Wisaya (executorship)

وِصاية

In the lexicon wisaya means to commission someone to act after one's death; one can say he bequeathed something to him, or made him his executor. ¹ Technically it is the commission to act after death. It differs from the bequest, which is a gift attached to the time after death made by way of a voluntary act; and from agency, which operates in life, while wisaya is after death; authority is the broader term. ¹² Its ruling for the testator: it is obligatory when it is for returning wrongful takings and unknown debts, or for young children when their loss is feared; it is recommended for paying a known debt, carrying out bequests and caring for children not at risk of loss. The appointee may accept if he is able and trusts himself. ² There are two kinds of executor: the judge's executor, appointed by the judge to look after a minor's money, and the testator's executor, chosen by the father, grandfather or one holding their right. The Hanafis list differences between them; for example, the testator's executor may, on Abu Hanifa's view, sell to himself where there is clear benefit, which the judge's executor may not do. ³ The judge appoints an executor in several cases named by the Hanafis, including a debt owed to or by the deceased, carrying out a will, a minor child, and a minor or absent heir. ³⁴ If an executor cannot carry out his duties, the Hanafis, Hanbalis and Shafi'is let the judge add another to help him where the executor was appointed by the father or grandfather; if he proves dishonest or dissolute, he is removed in the view of the four schools, and the judge appoints another. ⁴⁵ An executor is either a volunteer, which is a pure trust, or paid: by contract, a binding hire that can be paid from the estate, or without contract, a reward whose amount is set by the work done. ⁵ Wisaya has four pillars: the executor, the testator, the thing entrusted and the formula. ⁶ The executor must be sane, a Muslim where the ward is Muslim, and able to act; the disputed cases are a minor, a woman, a blind man, a dishonest person, a slave and an unbeliever. ⁶⁷ Under the executor's rank for a minor's guardianship, the Hanafis put the father, then his executor, then the grandfather, and so on; the Malikis and Hanbalis put the father, his executor, then the judge; the Shafi'is do not allow a father to appoint an executor while the grandfather is present. ⁸⁹ The testator must be sane and of age, free according to the majority, and in the view of the Malikis and Hanbalis of sound judgement; the Shafi'is require him to be just, and he must hold authority over the ward. ⁹¹⁰ The thing entrusted must be a known act the testator may do, such as paying debts or looking after a child. The formula requires offer and acceptance; a dumb person's clear sign suffices. ¹⁰¹¹ Acceptance or refusal may be made in the testator's lifetime according to the detailed views, and the Shafi'is in the preferred view only after death. ¹² Making the appointment conditional or time-limited is permitted by agreement. ¹³ A full account of the executor's duties follows in the next part of this headword. On the duties of the executor: where the appointment is unrestricted, he must keep and grow the minor's money, spend on him in a reasonable way and pay the dues owed on it, and his authority is measured by the testator's. ¹³ The Hanafis list his duties as preparing the dead and buying the shroud, meeting the children's needs, returning deposits and paying debts, returning usurped goods, selling what may perish, carrying out a named bequest and pursuing claims for the deceased. ¹⁴ The Malikis allow him to collect a debt or defer it in the interest of the ward, to spend on the child reasonably, to pay the zakat al-fitr, and to hand money out on mudaraba or as capital. ¹⁴ The Shafi'is name four duties: keeping the principal, growing the yield, spending reasonably, and paying the dues on the money; trading the ward's money is recommended under four conditions. ¹⁴¹⁵ Dues owed to God include zakat al-fitr and the tithes; Abu Hanifa dropped the zakat on property except from an adult of sound mind. Dues to people include debts, which the executor must pay when proven and demanded, and damages, which are paid from the money or, for homicide by mistake, by the kin. ¹⁵¹⁶ Hanbalis list his duties as paying debts, carrying out the bequest, looking after non-responsible persons, returning deposits and usurped goods, and the hadd for slander. ¹⁶ On zakat al-fitr for a minor the Malikis, Shafi'is, Hanbalis, Abu Hanifa and Abu Yusuf hold it due from the minor's money, while Muhammad and Zufar do not allow the executor to pay it. ¹⁶¹⁷ On sacrifice for a minor, Abu Hanifa and Abu Yusuf require it of a well-off executor, the Malikis recommend it, the Hanbalis allow it from large means, and the Shafi'is and Muhammad and Zufar forbid it from the minor's money. ¹⁷¹⁸ Dispositions: real estate is sold only for need or a clear benefit, movables may be sold to an outsider at market price; self-dealing is forbidden by the majority. ¹⁸ Trade with the ward's money takes three forms: trade for himself, trade for the ward, and handing it out on mudaraba. The Hanafis and Malikis forbid self-trade, and Abu Hanifa and Muhammad make the executor guarantee the capital and give the profit in alms. ¹⁸¹⁹ Trade for the ward is allowed by the Hanafis, Shafi'is and the Hanbali school, and forbidden by a Maliki view and a Hanbali face. Mudaraba with the ward's money is lawful, recommended by most, obligatory in the Shafi'i view. ¹⁹²⁰ Hiring out the ward is lawful for others, and the executor hiring the ward himself is treated in detail after puberty; leasing the ward's land for a long term is not valid in the Hanafi view. ²⁰²¹ Contracts made before puberty are discussed: the Hanafis let the ward dissolve nothing made over his property; the other schools distinguish by what the executor knew of the age. ²¹²² The four schools forbid any gift, alms or bequest from the ward's money, as pure harm. Selling it for a return has three views. ²²²³ On claims of pre-emption: where it helps the ward, the Hanafis, Malikis, Shafi'is and Hanbalis allow it and the Shafi'is and Hanbalis, with Muhammad and Zufar, make it obligatory; where leaving it helps him, it may be left. ²⁴²⁵ Where taking and leaving are equally good, the Shafi'is have three views: forbidden, obligatory, or optional. ²⁵²⁶ Borrowing from the ward for oneself is forbidden by the Hanafis, Malikis and Hanbalis; lending his money to others is allowed only in need or necessity. ²⁶²⁷ Pledging the ward's money for a debt of his own is forbidden by the Hanafis, Malikis and Shafi'is, and by the Hanbali school. ²⁷²⁸ On a dispute over expenses the executor's oath is accepted in ordinary expenses by the four schools; the Hanafis list twelve matters where his word stands without proof. ²⁸²⁹ On a dispute over the period of expenses or the date of the testator's death, the ward's word is accepted by the Malikis, Shafi'is, Hanbalis and Muhammad, and Abu Yusuf accepts the executor's. ²⁹ On handing the money back after puberty there are three views: the ward's word (Malikis in the preferred view, Shafi'is), the executor's oath (Hanafis), and the Hanbalis who distinguish a volunteer from a paid executor. ²⁹³⁰ The executor's fee: if the father or the judge fixed one, both rich and poor may take it; a rich executor without a fixed fee takes nothing; a poor one may take it under limits in the Hanafi preference, Maliki, Shafi'i and Hanbali views. ³⁰³¹ Appointing a further executor when none was named is allowed by the Hanafis, Malikis and a Hanbali report, and refused by the Shafi'is and the Hanbali school. ³¹ An executor's acknowledgement of a debt against the dead is void for the Hanafis and Hanbalis, unless the acknowledger is an heir. ³¹³² The testimony of two executors for a minor heir is void for the Hanafis; for an adult heir it is not accepted in the estate, and is accepted outside it. ³²³² The headword continues beyond p.17257; the remaining part is to be read in a later batch. Testimony of an executor for someone in his charge is refused by the Hanafis, Malikis, Shafi'is and Hanbalis in the preferred view, as an interested party; a Shafi'i may testify for another in matters where he holds a named trust. ³³ His testimony against the ward is accepted by the Malikis, Shafi'is and Hanbalis in the preferred view, and refused by the Hanafis and a Hanbali report. ³³ On appointing an agent, the Hanafis, some Shafi'is and a Hanbali method allow him to appoint an agent for anything he may do; the Malikis, the Shafi'i standard view and the Hanbali school forbid it where custom has him do the act himself. ³³ An executor's acknowledgement on behalf of the ward is not valid in the four schools, since it binds another. ³⁴ Depositing the ward's money: the Hanafis, Malikis and Hanbalis allow it where it benefits the child; the Shafi'is deposit or lend only for fear of theft, fire, drowning or travel, to a trustworthy person, and prefer a loan to a trustworthy solvent debtor. ³⁴³⁵ Lending out the ward's money as a loan of use is forbidden by most jurists as a gift; some Hanafis allow it by discretion, since it follows from trade. ³⁵ Mixing the executor's money with the ward's: the Hanafis allow it when it is more useful, the Malikis for ease, the Hanbalis if it is easier, and the Shafi'is only for food needed for cooking. ³⁵³⁶ Division by the executor on behalf of heirs or the legatee: the Hanafis allow him to divide on behalf of the heirs with a legatee of a third, but not the reverse; the Malikis forbid dividing for an absent party without a judge; the Shafi'is forbid him to divide a common share on his own; the Hanbalis allow it. ³⁶³⁷ The executor's liability: a measure that clearly serves the ward is valid; one that does not serve him makes him liable; his hand is that of a trustee, liable only for transgression or neglect. ³⁷ Dismissal: the executor may dismiss himself during the testator's life, and he is removed by losing a condition of executorship. ³⁷