The Book of Bequests

Introduction to Bequests

الوَصَايَا

Glossary

The Book of Bequests

It was reported from Sa‘d (ibn Abi Waqqâṣ) that he said, “O Messenger of Allah, my ailment reached the extent that you see, and I am a wealthy man, and I have one daughter only. Should I give away two-thirds of my wealth for charity?” He said no. I asked, “Half?” He said no. I asked, “One-third?” He said, “One-third (is fine), and one-third is still a lot. It would be better to leave your inheritors wealthy than to leave them poor, begging from others.” ¹⁰⁶⁶,¹⁰⁶⁷

رُوِيَ عَنْ سَعْدٍ قَالَ: "قُلتُ يا رسول الله قد بَلَغَ بِيَ الجَهْدُ ما تَرَى، وَأَنَا ذُو مَالٍ، وَلاَ يَرِثُنِي إِلاَّ ابْنَةٌ؛ أَفَأَتَصَدَّقُ بِثُلُثَىْ مَالِي؟ قَالَ ‏لاَ‏‏.‏ قُلْتُ فالشَّطْرِ قَالَ لاَ قُلْتُ فالثُّلُثُ؟ قَالَ ’الثُّلُثُ؛ وَالثُّلْثُ كَثيرٌ. إِنَّكَ أَنْ تَدَعَ وَرَثَتَكَ أَغْنِيَاءَ خَيْرٌ مِنْ أَنْ تَدَعَهُمْ عَالَةً يَتَكَفَّفُونَ النَّاسَ.‘"

1066. Introduction

Waṣiyah is a verbal noun used to refer both to the act of bequeathing and to the bequeathed property itself. The discussion of this topic is mainly about five issues: the waṣiyah (bequest/ testament/ will), the mooṣi (testator), the mooṣâ lahu (legatee), the waṣiy/mooṣâ ilayhi (executor of the bequest), and the mooṣâ bihi (bequeathed property). The mooṣâ ilayhi (executor of bequest) will be addressed in the following chapter.

1067. (Ag)

In the preface of the book, Imam Ibn Qudâmah (may Allah have mercy on him) said, “I included in it authentic narrations for their blessings and authority.” He did so in this very abridged book of Ḥanbali rulings to remind the student of knowledge that the spirit and foundation of this knowledge is the revelation (the Qur’an and Sunnah). The mere memorization of the rulings of different madh-habs does not make one a faqeeh (scholar of Islamic jurisprudence) until he or she knows their sources (proofs) and how they were deduced, and acts upon them with devotion.

[Ruling and Amount of Bequest]

It is preferred ¹⁰⁶⁸ for one who leaves wealth behind to bequeath one-fifth of his estate. ¹⁰⁶⁹

وَيُسْتَحَبُّ لِمَنْ تَرَكَ خَيْرًا الْوَصِيَّةُ بِخُمُسِ مَالِهِ.

1068. Rulings of Bequest

(A) + (+H, +M, +S): It is wâjib (mandatory) for someone with liabilities to write a will detailing them. In addition to the rights of people, (A) adds the rights of Allah that have not been fulfilled, such as unpaid zakat, vows, and expiations, as well as Hajj if the deceased did not perform the mandatory Hajj.

(A) + (+H, +M, +S): Bequests are not recommended for those who have little or no money (and no liabilities). Those who have little wealth, and have heirs who are poor, should not bequeath any portion of their estate because the heirs have a superior claim to it.

(A) + (+H, +M, +S): If someone has a significant estate and no liabilities, bequeathing is mustaḥabb (recommended).

Some scholars, including az-Zuhri, held that it is wâjib on all people. They cited the Prophet’s saying:

“It is unbefitting of a Muslim who has something concerning which he wants to write a will to spend two nights without having his will written down regarding it.” (Ag – from Ibn ‘Umar)

مَا حَقُّ امْرِئٍ مُسْلِمٍ لَهُ شَىْءٌ يُرِيدُ أَنْ يُوصِيَ فِيهِ يَبِيتُ لَيْلَتَيْنِ إِلاَّ وَوَصِيَّتُهُ مَكْتُوبَةٌ عِنْدَهُ

They also said that at first, it was agreed that the waṣiyah was obligatory, based on Allah’s saying:

{Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.} (al-Baqarah 2: 180)

{كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ إِن تَرَكَ خَيْرًا الْوَصِيَّةُ لِلْوَالِدَيْنِ وَالْأَقْرَبِينَ بِالْمَعْرُوفِ ۖ حَقًّا عَلَى الْمُتَّقِينَ}

They argued that the obligation that was abrogated only concerned bequeathing to heirs who were later given fixed shares by Allah, not to those relatives who do not inherit.

The majority argued that some of the Companions did not have a will, and the others did not blame them for this. The hadith of Ibn ‘Umar above may be understood to refer to someone who has liabilities, or as an encouragement to those who want to bequeath, to act upon their intent before death befalls them. Notice that the Prophet (SA) said, “concerning which he wants to write a will.”
Retracting a Bequest

The waṣiyah is a jâ’iz (non-binding/revocable) contract, which means the testator can retract it at any time before his or her death. The only exception to this is tadbeer (a binding promise of emancipation of a slave after the master’s death).

1069. The Amount of the Bequest

The hadith of Sa‘d (RA) above indicates that the amount of a bequest is limited to 1/3 of the estate. They all agreed on this, but they disagreed over the best amount; 1/3, 1/4, and 1/5 were all mentioned. The chosen position in (A) is 1/5; this was reported in Sunan al-Bayhaqi to be the position of Abu Bakr and ‘Ali, albeit with a controversial transmission. Ibn Qudâmah added in al-Mughni that this was the position of most of the salaf (the earliest generations of the righteous followers of Islam).

[Testator]

A bequest is valid by anyone whose gifting is valid, and so is the tadbeer. It is also valid by the discerning child and the one interdicted for foolishness. ¹⁰⁷⁰

A bequest is valid by anyone whose gifting is valid, and so is the tadbeer. It is also valid by the discerning child and the one interdicted for foolishness.

1070. The Eligible Testator

After addressing the ruling and amount of waṣiyah, Imam Ibn Qudâmah proceeds to address the testator (the person who has made a will or given a bequest). Certain people, such as the insane and the non-discerning child, are not eligible to conduct any transactions – but there is one difference between the waṣiyah and other financial transactions. The bequest is a transfer of part of one’s estate after one’s death, so it does not harm the testator during his or her life. Since it is limited to 1/3 of the estate, it will not deprive the heirs of their rights; also, it is usually benevolent and reward-worthy. For these reasons, even discerning children and those interdicted for foolishness were allowed to bequeath.
Note that the financial transactions of discerning children belong to one of three categories:
1) Purely in their interests, such as accepting gifts. These are valid by agreement.

2) Purely against their interests, such as giving away property or lending money. These are invalid, even with the approval of their guardian. (-H, -M): Ṭalâq (divorce) is in this category.

(A): Ṭalâq is in the 3rd category.

3) Having both potential harm and potential benefit. (A) + (+H, +M): Valid with the guardian’s approval. (a) + (-S): Invalid, even with the approval of the guardian.

Introduction to Bequests

( Page : no 93)

The Book of Bequests

Introduction to Bequests

الوَصَايَا

Introduction

The Book of Purification

The Book of Prayer

The Book of Funerals

The Book of Fasting

The Book of Hajj and 'Umrah

Book of Zakat

The Book of Selling and Commercial Transactions

The Book of Bequests

The Book of Inheritance

The Book of Marriage

The Book of Divorce

The Book of Sadaq

The Book of Dhihar

The Book of Lian

The Book of Foods

The Book of Oaths

Book of Fatal and Non-Fatal Assault

The Book of Indemnities

The Book of Hudood

The Book of Jihad

The Book of the Judiciary

The Book of Testimonies

Appendix

Glossary

The Book of Bequests

[Ruling and Amount of Bequest]

[Testator]

Introduction to Bequests