The Testament

The Testament by language, will contain several meanings: to make, put love, notice, connecting, ordering, obliges.

Etymologically, the Muslim jurists argued that bequest is based on the ownership of property that states will die with good road without demanding compensation.

Sayyid Sabiq said that the definition is in line with the definition of a will made by the Muslim jurists among the Hanafi madhhab who said bequest is the act of someone who gives rights to others to own property or benefits benefits voluntarily without compensation performed at the time of the death of a referee gave it.

Meanwhile, Sheikh Al-Jaziri, explained that among the schools of Shafi'i, Hanbali, and Have give a detailed definition of a will, a will is a transaction that makes the person receiving the bequest is entitled to have a third of the heritage of the people who express a will after he died.

And in Islamic Law Compilation mentioned bequest is a gift of a body of the heir to another person or institution that will apply after the heir to his death (Article 171 letter b).

In connection with the understanding and position in the legal system will apply in Indonesia, there is little difference in practice, giving rise to some legal problems and intersect with the Islamic inheritance laws which require solution resolution, then in this discussion, will try to discuss about some legal problems concerning his will and problems, particularly those related to his heirs.

a. People Who Will Receive

Among the conditions of people who will receive a testament is, not including heirs. This opinion is held by the four schools of thought, Hanafi, Maliki, Syaf'i, and Hambali. The legal basis indicated by the hadith the Prophet who said,

"There is no bequest to heirs" (Narrated by at Tirmidhi).

Consideration of why a will is not justified to the beneficiary easily understood, because the bequest in its social function is intended to give spaciousness to a close relative who does not belong to the heirs who receive the division of his assets, to help the economically weak, poor, or to contribute to the worship or educational facilities.

Not all the relatives get the estate, and not all relatives of affluent. Among them is blocked by a more close relatives, and some relatives who are not heirs, who will receive the estate. In addition, many religious facilities and education facilities that require funds from the rich.
Such noble goal will be difficult to achieve if a will addressed to heirs only. In addition, the intestate heirs could lead to cross-transfer dispute heirs. Party heirs who receive property will feel take precedence, otherwise the other heirs who do not have a will feel dianaktirikan.

Differentiate between children that one with the other children in the granting of rights, forbidden in Islam. In a hadith the Messenger of Allah SAW said:

"Samakanlah gift of your children" (Narrated by Bukhari).

Bequeath property to some children means opening the possibility of disputes between them.

The intestate heirs are not allowed, except with the approval of the other heirs, as confirmed in a hadith narrated Daruquthni. Terms of tradition was held by Imam Abu Hanifa, Shafi'i and Ahmad ibn Hambal.

This conclusion is based that the intestate heirs should not be. Unless the other heirs agree.

In contrast to the opinion above, among Malikiyah and Dhahiriyah argued that the prohibition on heirs intestate not be down with the approval of the other heirs. According to them, a ban like that is including the right of God Almighty who can not fall to the willingness of man. Heirs have no right to justify acts that are prohibited from Allah SWT. According to this opinion, the thing to note is that, for wealth does not come together on heirs.
Some property needs to be given to people or other institutions in need.

If the beneficiary agrees, then his status is no longer as a testament, but a grant from the heirs, who must meet certain requirements as to which grants in general.

When to hold on to the first opinion, which is testament to the beneficiary is allowed provided that the other heirs agree, then when some heirs agree but others do not agree, a will is valid at the level of the right heirs agree, and are not valid at the level rights of heirs who do not agree.

b. Part Treasure Which Can Diwasiatkan

In the interest of the heirs of abandoned, intestate person is only entitled to bequeath one-third of the property abandoned. In a hadith the Prophet Muhammad is mentioned, from Sa'd ibn Abi Waqqash RA, he said, the Prophet Muhammad had come to see me when in Mecca. And, I do not like to die in my home area hijrah. Messenger said, "May Allah bestow His mercy on Ibn Afrak." Sa'ad men replied, "Yes, Messenger of Allah, may I make one's will all treasure my wealth? "The Apostle replied," Not allowed. "I asked, 'Half? "He replied," Not allowed. "I asked again," One third? "The Apostle said," One third. And a third that many. In fact if you leave in a state rich warismu expert, better than you left them poor to beg to others. Indeed, any small treasure that you spend, then it is really a charity, including the food that you suapkan to mouth isterimu.Dan may Allah Almighty raised derajatmu, so that the Muslims get a lot of benefit from you and idolaters falling hazard. "

Hadith is expressly prohibits more than one-third will treasure, and a third was already considered a lot. This means that under certain conditions, less than a third of intestate property, is considered better, so it does not reduce the rights of the heirs of the deceased.