Muwatta Malik (Yahya)

It is narrated from Sayyiduna Sa’d bin Abi Waqqas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings of Allah be upon him) came to visit me (i.e., to inquire about my health) in the year of the Farewell Pilgrimage, and my illness was severe. I said: O Messenger of Allah (peace and blessings of Allah be upon him)! You see the condition of my illness, and I am wealthy, and my only heir is my one daughter. Should I give two-thirds of my wealth for the sake of Allah? The Prophet (peace and blessings of Allah be upon him) said: “No.” I said: Should I give half of my wealth? The Prophet (peace and blessings of Allah be upon him) said: “No.” Then the Prophet (peace and blessings of Allah be upon him) himself said: “Give one-third of your wealth for Allah, and one-third is also much. If you leave your heirs wealthy, it is better than leaving them poor, begging from people, stretching their hands before them. And whatever you spend seeking Allah’s pleasure, you will be rewarded for it, even for what you put in your wife’s mouth.” Then I said: O Messenger of Allah (peace and blessings of Allah be upon him)! Will I remain behind my companions? The Messenger of Allah (peace and blessings of Allah be upon him) said: “If you remain behind and do good deeds, your rank will be elevated, and perhaps you will live (and not die in Makkah), until Allah, the Glorious and Majestic, benefits a people through you and harms a people through you. O Lord! Complete the migration of my companions, and do not turn them back from this migration on their heels.” But the one afflicted was Sayyiduna Sa’d bin Khawlah (may Allah be pleased with him), for whom the Messenger of Allah (peace and blessings of Allah be upon him) grieved because he died in Makkah.

Imam Malik, may Allah have mercy on him, said: If someone makes a bequest of one-third of his wealth to a person, and says, "My slave should serve such-and-such person as long as that person is alive, then he is free," and afterwards the value of the slave equals one-third of the wealth, then the value of the slave's service will be assessed, and shares will be divided in the slave. The one to whom the bequest of one-third was made will have a share of one-third, and the one to whom the service was bequeathed will have a share according to the service. After that, both persons will take their share from the service or earnings of the slave. When the person for whom the service was intended dies, the slave will become free.

Imam Malik, may Allah have mercy on him, said that if a person makes a bequest to several people, and then his heirs claim that the bequest is more than one-third, then the heirs have the choice: either each legatee is given his bequest and the heirs take the rest of the deceased’s estate, or they hand over one-third of the wealth to the legatees, however many they may be, and then divide it among themselves according to their shares.

Imam Malik, may Allah have mercy on him, said that similarly, a pregnant woman, in the early stages of pregnancy, as long as she remains happy, joyful, and healthy, with neither illness nor fear, will have authority over all her wealth. Allah, Glorious and Exalted, has said in His Book: "We gave glad tidings to Sarah of Isaac, and after Isaac, of Jacob." And Allah, Glorious and Exalted, has said: "When a man had intercourse with a woman, she became pregnant, and they moved about lightly. When the pregnancy became heavy, they both prayed to Allah, their Lord, saying: 'If You give us a righteous (or healthy and sound) child, we will surely be grateful.'" Thus, when a pregnant woman becomes heavy, at that time she does not have authority over more than a third of her wealth, and this is after six months, because Allah, Glorious and Exalted, says: "Mothers shall suckle their children for two complete years for whoever wishes to complete the term of suckling." And then He says: "The bearing of the child and the weaning of him is thirty months." So, when six months have passed over the pregnant woman from the day of conception, from that time her disposal of more than a third of her wealth will not be valid.

Imam Malik, may Allah have mercy on him, said that a person who stands in the battle line and goes to fight, it is not permissible for him to dispose of more than one-third of his wealth; he is also under the same ruling as a pregnant woman and a sick person.

Imam Malik, may Allah have mercy on him, said that this verse: «﴿إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ إِن تَرَكَ خَيْرًا الْوَصِيَّةُ لِلْوَالِدَيْنِ وَالْأَقْرَبِينَ بِالْمَعْرُوفِ﴾» meaning: "When death approaches any of you and he leaves behind wealth, he should make a bequest for parents and relatives," this verse is abrogated by the verses of inheritance in which Allah has fixed the share of each.

Imam Malik, may Allah have mercy on him, said: In our view, making a bequest (wasiyyah) for an heir is not valid, except when the other heirs permit it. And if some heirs permit it and some do not, then the bequest will be fulfilled from the shares of those who permit it.

Imam Malik, may Allah have mercy on him, said that if a person is ill, he should seek permission from his heirs to make a bequest of more than one-third, and if the heirs grant permission for him to make a bequest of more than one-third to any heir, then those heirs no longer have the right to retract. If retraction were permissible, every heir would do so; when the testator died, they would take the bequeathed wealth for themselves and prevent the execution of the bequest. However, if a person, while in good health, seeks permission from his heirs to make a bequest in favor of an heir, and they grant permission, then they may retract, because when a person is healthy, he has authority over all his wealth—he may give all of it in charity or hand it over to anyone he wishes. Thus, seeking permission in this state is meaningless, and the heirs granting permission is also premature; therefore, their retraction is valid. In fact, seeking permission is only valid when he no longer has authority over his wealth and is not able to dispose of more than one-third; at that time, the heirs have authority over the remaining two-thirds—they may grant permission as well. If a sick person says to his heir: "Gift me your share of the inheritance," and the heir gifts it, but the sick person does not dispose of it and dies in that state, then that share will revert to the same heir. However, if the deceased says to one heir that another heir is very weak, so gift your share to him, and if he does so, it will be valid. If an heir gifts his share of the inheritance to the deceased, and the deceased gives some of it to someone and some remains, then whatever remains will belong to that same heir.

Imam Malik, may Allah have mercy on him, said that if a person made a will, and afterwards it became known that he had given something to one of his heirs which the heir had not taken possession of, and the other heirs refused to permit it, then it will become the right of the heirs and will be distributed according to the Book of Allah.

Imam Malik, may Allah have mercy on him, said that a pregnant woman is like a sick person; if the illness is mild in which there is no fear of death, then the owner of the wealth has the choice to dispose of it as he wishes. However, in an illness in which there is fear of death, it is not permissible to dispose of more than one-third.