إشكالية وصية الزوج بتخصيص جميع تركته لزوجته: دراسة واقعها في جاكرتا الجنوبية

The Problematic Nature of a Husband's Will to Bequeath His Entire Estate to His Wife: A Case Study in South Jakarta

Abstract

This study aims to analyze the problematic nature of a husband's will bequeathing all assets to his wife in a case from South Jakarta, by identifying the contributing factors and examining the resolution mechanism within the framework of Islamic law and the Compilation of Islamic Law (KHI). A socio-legal approach with qualitative research design was employed. Primary data were collected through in-depth interviews with five informants comprising two key informants—the testator's brother and elder sister—and three expert informants consisting of two Islamic inheritance law lecturers and one Islamic family law lecturer, supplemented by documentation of electronic conversation records related to the family deliberation process. The findings reveal three contributing factors: first, the testator's emotional and moral motive stemming from a deep sense of gratitude toward his wife for her sacrifices in caring for him during his illness; second, limited understanding of will provisions leading to the erroneous belief that partial consent from some heirs was sufficient; and third, procedural weaknesses in the will's drafting process including the absence of notarial documentation and the death of one witness prior to the testator. The will was declared legally invalid on two cumulative grounds: a substantive defect for bequeathing all assets to an heir without unanimous consent of all heirs, contrary to the hadith lā waṣiyyata liwārith and Article 195 of the KHI; and a procedural defect due to the death of one witness before the testator. Resolution was achieved through family deliberation categorized as ṣulḥ (reconciliation) in Islamic jurisprudence, facilitated by the wife's brother-in-law, resulting in asset distribution according to Islamic inheritance law followed by voluntary hibah (grants) from some heirs to the testator's wife. This study contributes to empirical research in Islamic family law and recommends strengthening public awareness of will provisions and ensuring proper documentation in accordance with both Islamic and positive legal requirements.