The Rituals of Hajj [Electronic resources] نسخه متنی

Making a will regarding
pilgrimage

Rule 73:

If a person on a deathbed has
an obligation to perform his first 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 volunteer to perform pilgrimage for him, he must
stipulate that in his will. If he dies, pilgrimage must be performed from his
estate, as must also be done if he has made a general direction about it without
qualifying that its expenses be defrayed from his bequeathable one-third.

However, if he directs that pilgrimage be performed from his portion of
one-third in the estate and the expenses can be met therefrom, the expenses must
be paid for from that portion and must take precedence over all other
instructions in the will. If the bequeathable one-third of the estate is
insufficient to meet the expenses, the balance must be defrayed from the entire
estate.

Rule 74:

It has been said that if a
person dies without having performed obligatory pilgrimage but leaves a deposit
with a person who fears that if he gave it back to the heirs, they will not have
the obligatory pilgrimage performed on behalf of the deceased, it is obligatory
on that person to perform pilgrimage himself, or by an agent and pay the heirs
only the balance, if any, after meeting the expenses. However, this is not free
from ishkal, i.e. arguable or problematic.

Rule 75:

A person may die without
having performed obligatory pilgrimage; they may leave debts and liability of
khums and zakah; their estate is not sufficient to discharge all these
obligations.

If the funds for such religious dues payable on the property
were available, they must first be settled. If the deceased was indebted with
same, pilgrimage will take precedence over their settlement; however, the
settlement of debts takes precedence over pilgrimage.

Rule 76:

If a person dies without
having performed obligatory pilgrimage, it is not permissible for the heirs to
have a free hand in his estate, without first meeting the expenses of the
pilgrimage, irrespective of whether or not the estate is sufficient to meet the
expenses. However, there is no objection to transactions made after provision
has been made for the expenses of pilgrimage.

Rule 77:

If a person dies without
having performed obligatory pilgrimage and his estate is not sufficient to meet
the expenses of having it performed, the available assets must be used to repay
the debts, and khums and zakah; the balance should be distributed among the
heirs. It is not obligatory on the heirs to supplement the expenses of
pilgrimage from their personal property.

Rule 78:

If a person dies without
having performed obligatory pilgrimage, it is not necessary to pay for the
expenses of the pilgrimage from the country of residence of the deceased.

It
is sufficient to pay from the Meqat. Indeed, it is sufficient to appoint an
agent from the Meqat with the most reasonable cost. As a matter of preferential
precaution (al ahwatil awla), 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 are absolutely determined to have the pilgrimage performed,
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 Meqat, the share of the young heirs
must not be used to meet the cost.

Rule 79:

If a person dies without
having performed obligatory pilgrimage, it, as a matter of precaution (al
ahwat), is mandatory to have it performed in the same year the person died. If
it is not possible to hire an agent from the Meqat in that year, it is, as a
matter of precaution, 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 Meqat. However,
if the cost from the country of the deceased is higher than the cost from the
Meqat, the share from the young heirs must not be used to meet the cost.

Rule 80:

If a person dies without
having performed obligatory pilgrimage and it is not possible to obtain an agent
at a reasonable fee, it is, as a matter of precaution, obligatory to appoint
one, even at a higher rate 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 Meqat, the share of the young heirs
must not be used to meet the cost.

Rule 81:

If any one among the heirs
admits that there was an obligation on the deceased to perform pilgrimage, it is
not obligatory on those who think so to have the pilgrimage performed, except to
the tune of their shares of inheritance.

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 meet the shortfall from their personal properties. If a
donor comes forward to make up the shortfall, or it is met in any other way,
deputizing someone to perform Hajj for the deceased becomes obligatory.

Rule 82:

If a person dies without
having performed obligatory pilgrimage, and a person volunteers to perform it on
his behalf gratuitously, the heirs will no longer be required to have one
performed themselves.The same applies in the event of the deceased instructing
that pilgrimage be performed from his bequeathable one-third.

However, in
both the cases the cost that would have been incurred on pilgrimage should not
revert to the heirs, but be disposed of in good causes closest to the deceased's
heart.

Rule 83:

If a person dies without
having performed obligatory pilgrimage but directs in his will that an agent be
appointed from his town to perform one, it is obligatory to do so. However, the
extra amount of remuneration, over what would have been paid if the agent was
appointed from the Meqat, should be met from the bequeathable one-third of the
estate.

If, in the will, he directs that pilgrimage be performed without
specifying the starting point, it is sufficient to appoint an agent from the
Meqat, unless there was an expressed that the agent be appointed from his town,
for example, by designating a sum for pilgrimage which would adequate as a fee
for the agent from the town.

Rule 84:

If a person directs in his
will that, in the event of his death, the agent, who is going to perform
pilgrimage for him, be appointed from his town, and if the executor or heir
appointed one from the Meqat, the appointment is invalid; This is so only if the
remuneration be paid from the estate of the deceased. However, the obligation of
the deceased will be discharged by the performance of the agent.

Rule 85:

If the will of the deceased
stipulates that an agent be appointed to perform pilgrimage from another town or
country, it is obligatory to act on it and the expenses in excess of what would
have been paid to an agent appointed from the Meqat will be met from the
bequeathable one-third of the estate.

Rule 86:

If the will of the deceased
stipulates that an agent be appointed to perform an obligatory pilgrimage on his
behalf for a given wage, it is obligatory to act upon it. The remuneration
should be paid from the gross estate, if it does not exceed what is commonly
held as acceptable. However, if it does, the excess must be settled from the
one-third bequeathable portion.

Rule 87:

If the will of the deceased
stipulates that pilgrimage be performed on his behalf from an identified
property, and it is in the knowledge of the executor that there is a liability
of khums or zakah on the property, these must first be paid from it.

The
balance should then be used to meet the expenses of pilgrimage;if it is not
sufficient, the shortfall must be met from the gross estate, should the
obligation of the deceased be for Hajjatul Islam, otherwise the balance must be
spent in good causes of the kind in which the deceased would have wished to
donate.

Rule 88:

If it becomes obligatory to
appoint an agent to perform pilgrimage on behalf of a deceased, with or without
a will, and the person charged with executing the obligation delays the
appointment of the agent, so much so that the property, from which the expenses
would have been paid, was damaged, he is personally responsible to employ an
agent from his personal property.

Rule 89:

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

Rule 90:

The obligation of the
deceased would not be 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 a good reason or not, it is obligatory to appoint another
agent and meet the expenses from the gross estate.

If it was, at all,
possible to recover the sum from the first agent, it is obligatory to do so, in
the event that the money was paid from the estate of the deceased.

Rule 91:

If there were numerous agents
available, the one who should be chosen must be on the basis of the deceased
stature. Accordingly, it is permissible to pay a higher remuneration. Evidently,
that is so, even though the wage will be paid from the third allotted to the
deceased, and that there was a minor among the heirs, who did not agree to
that.

However, hiring an agent could prove problematic (mushkil), if it
encroaches upon discharging other financial obligations the deceased stipulated
in his will to be met, such as debt and zakah.

Rule 92:

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

Rule 93:

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

Rule 94:

If the will of the deceased
stipulates that an obligatory pilgrimage be performed on his behalf, and it
becomes known that it was Hajjatul Islam, the expenses incurred must be paid
from the gross estate, unless he has expressly directed that the expenses be
settled from his bequeathable one-third. If it becomes known to the person so
directed that pilgrimage was other than Hajjatul Islam, or if there is doubt,
the expenses must be paid from the one-third.

Rule 95:

If the will of the deceased
stipulates that an obligatory pilgrimage be performed on his behalf by a
particular person, it is obligatory to comply with the instruction. If the
nominated person does not accept the appointment except for a higher than the
usual remuneration, the excess must be paid from the one-third portion of the
estate, if the pilgrimage was Hajjatul Islam.

Rule 96:

If the will stipulates that
pilgrimage be performed for him for a particular sum to be paid to an agent, and
the designated sum is such that it attracts no one, and if the obligation of the
deceased was for Hajjatul Islam, it is obligatory to make up the difference from
the gross estate.

If it was not for Hajjatul Islam, the sum earmarked for
remuneration must be used for a good cause of the kind in which the deceased
would have wished to donate. Otherwise, the stipulation lapses and the intended
amount reverts to the estate

Rule 97:

If a person sells his house
for a sum of money and makes it conditional on the buyer that he should spend it
in the performance of an obligatory pilgrimage after his death, upon his death
the amount in question will form part of his estate. If the pilgrimage to be
performed was Hajjatul Islam, the condition becomes operative and it is
obligatory to spend the sum on the remuneration for the pilgrimage, provided it
does not exceed the usual remuneration. If it does, the deficit will be met from
the one-third of the estate.

If pilgrimage was not that of Hajjatul Islam,
the condition will still be sound and the whole remuneration will be paid from
the one-third. If that share is insufficient, the condition shall no longer be
operative insofar as the shortfall is concerned.

Rule 98:

If a person donates, for
example, his house to another on the condition that he performs 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; 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 latter can 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; the heirs will have no right in the property. If the recipient fails
to fulfil the condition, the right in the property does not shift to the heirs,
but to the executor or the Marji', and if he nullifies the transaction, the
property reverts to the estate of the deceased.

Rule 99:

If an executor dies and it is
not known whether he appointed an agent before his death, it is obligatory to
appoint one from the estate if the pilgrimage is Hajjatul Islam, and from the
one-third share, if it is not.

If, however, the executor had taken
possession of a 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 negligent.

Rule 100:

If the property was lost
while in the possession of the executor without negligence on his part, he shall
not be held responsible to compensate it. An agent must be appointed from the
remainder of the estate if the pilgrimage is Hajjatul Islam and from the
one-third portion, 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 proportionately.

The same rule applies if a person is
appointed an agent and dies before performing pilgrimage without leaving any
estate, or if it is not possible to recover it from his estate.

Rule 101:

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 due to the negligence of the executor, it is not permissible to
exact compensation from the executor.

Rule 102:

If the will stipulates that
a certain amount be spent on a pilgrimage other than Hajjatul Islam and there is
doubt that it is in excess of the bequeathable one-third, it is not permissible
to spend the whole of the amount without the consent of the heirs.