Will is obligatory on the one who has something that can be bequeathed.
Linguistic explanation: The term “wasiyyah” (will) refers to the thing that is bequeathed as well as the act of bequeathing. The form اوصي يُوصى (إفعال) means to make a commitment to some action either during life or after death. The form تَوَاصٰى يَتَوَاصٰي (تفاعل) means to bequeath to one another. The form اِسْتَوُصى يَسْتَوْصِى (استفعال) means to accept a will. وَصِيّ refers to the one who makes the will or the one to whom the will is made.
[Al-Munjid: p. 970, Al-Qamus Al-Muheet: p. 1208, Al-Fiqh Al-Islami wa Adillatuhu: 7439/7]
Shariah definition: A specific covenant related to an act intended to take effect after death.
[Sabil Al-Salam: 1284/3, Nayl Al-Awtar: 96/4]
Legitimacy:
➊ كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ إِن تَرَكَ خَيْرًا الْوَصِيَّةُ لِلْوَالِدَيْنِ وَالْأَقْرَبِينَ [Al-Baqarah: 180]
“It is prescribed for you, when death approaches any of you, if he leaves wealth, that he makes a bequest for the parents and near relatives.”
➋ مِن بَعْدِ وَصِيَّةٍ يُوصَىٰ بِهَا أَوْ دَيْنٍ [An-Nisa: 12]
“After the bequest has been made and after the debt.”
It is narrated from Hazrat Ibn Umar (may Allah be pleased with them) that the Messenger of Allah (peace be upon him) said:
ما حق امرئ مسلم يبيت ليلتين وله شيئ يريد أن يوصى فيه إلا ووصيته مكتوبة عند رأسه
“No Muslim should intend to bequeath any of his possessions and pass two nights without having his will written down.”
In one narration, Hazrat Ibn Umar (may Allah be pleased with them) said:
لم أبت ليلة منذ سمعت رسول الله يقول ذلك إلا و وصيتي عندي
“Since I heard the Messenger of Allah (peace be upon him) say this, I have not passed a single night without having my will with me.”
[Bukhari: 2738, Book of Wills: Chapter of Wills, Muslim: 1627, Muwatta: 761/2, Abu Dawood: 2862, Nasa’i: 238/6, Tirmidhi: 2118, Ibn Majah: 2702, Darimi: 402/2, Tayalisi: 1841, Ibn Al-Jarud: 946, Bayhaqi: 272/6, Ibn Hibban: 606/7, Humaydi: 306/2, Darqatni: 150/4, Sharh Al-Sunnah: 277/5, Al-Hilyah li Abi Nu’aym: 352/6, Ahmad: 10/2, Bada’i Al-Manan li Al-Shafi’i: 129/2]
➋ Allah Almighty’s guidance is:
كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ إِن تَرَكَ خَيْرًا الْوَصِيَّةُ لِلْوَالِدَيْنِ وَالْأَقْرَبِينَ [Al-Baqarah: 180]
“It is prescribed for you, when death approaches any of you, if he leaves wealth, that he makes a bequest for the parents and near relatives.”
The command in this verse regarding bequest for parents and relatives has been abrogated by the verse of inheritance, as the Messenger of Allah (peace be upon him) said:
إن الله أعطى كل ذي حق حقه فلا وصية لوارث
“Allah has given every rightful heir his due right; now there is no bequest for the heir.”
It is established that the abrogation applies only to parents and heirs, but the command to bequeath for those who do not have a share in inheritance remains exactly as before.
[Taysir Al-‘Ali Al-Qadir: 139/1]
Along with the command of this verse, the following words of the hadith must be considered:
يريد أن يوصى
“He wishes to make a will.”
There is a difference of opinion regarding whether making a will is obligatory or recommended:
(Jamhur) Making a will is recommended, not obligatory.
(Shafi’i, Ishaq) Making a will is obligatory. Imam Ata, Imam Zahri, and Imam Ibn Jarir also hold this view.
[Sabil Al-Salam: 1285/3]
(Ibn Hajar) The opinion of the majority is stronger.
(Stronger) Making a will is obligatory for the person who has rights of others upon him, such as trusts and debts, and also has wealth, and it is not possible to be freed from these rights except through a will. If any of these conditions is lacking, then making a will is not obligatory for him.
[Sabil Al-Salam: 1285/3]
ووصيه مكتوبة
“And his will is written.”
From these words of the hadith, it is inferred that reliance on writing is permissible even if there is no testimony. Imam Qurtubi states that mentioning writing is merely for emphasis; otherwise, a will is accepted with testimony even without writing.
[Nayl Al-Awtar: 98/4, Sabil Al-Salam: 1285/3]
It is not permissible to make a will that harms an heir
➊ It is narrated from Hazrat Abu Huraira (RA) that the Messenger of Allah (PBUH) said: “A man or woman obeys Allah for sixty years, but when death comes, they cause harm to the heirs through their will. Because of this, the fire of Hell becomes obligatory for them.” Then Hazrat Abu Huraira (RA) recited this verse:
مِن بَعْدِ وَصِيَّةٍ يُوصَىٰ بِهَا أَوْ دَيْنٍ غَيْرَ مُضَارٍّ ۚ وَصِيَّةً مِّنَ اللَّهِ ………… [An-Nisa: 12]
“After the will that is made and after the debt, [there should be no harm caused to others]; this is ordained by Allah.”
[Weak: Weak Abu Dawood: 614, Book of Wills: Chapter on the dislike of causing harm in wills, Weak Tirmidhi: 376, Weak Ibn Majah: 591, Abu Dawood: 2867, Tirmidhi: 2117, the narrator Shahr bin Hawshab in its chain is weak. Al-Majruhin: 361/1, Al-Jarh wa Ta’dil: 382/4, Mizan al-I’tidal: 283/3, Taqreeb al-Tahdheeb: 355/1, Al-Mughni: 301/1]
Although the hadith is weak, this verse alone is sufficient on this issue.
➋ It is narrated from Hazrat Ibn Abbas (RA) that:
الإضرار فى الوصية من الكبائر
“Causing harm to heirs in a will is among the major sins.”
[Dar Qutni: 151/4, Tafsir Ibn Kathir: 471/1, Abdul Razzaq: 88/9, 16456]
Among the types of harm is giving preference of some heirs over others or making a will to take out wealth that harms the heirs. The apparent evidence indicates that a will causing harm will not be enforced, whether it is for one-third of the wealth or less or more.
[Nil al-Awtar: 100/4]
Neither is it permissible for any heir nor is it correct in any sinful act.
➊ It is narrated from Hazrat Amr bin Khakhra (may Allah be pleased with him) that the Messenger of Allah (peace be upon him) said:
إن الله أعطى كل ذي حق حقه فلا وصية لوارث
“Allah Almighty has given every rightful person their due right; therefore, there is no will for any heir.”
[Sahih: Sahih Ibn Majah: 2192, Kitab al-Wasaya: Bab al-Dain Qabl al-Wasiyah, Irwa al-Ghalil: 88/6 – 89, Tirmidhi: 2121, Kitab al-Wasaya: Bab Ma Ja’a La Wasiyah li Warith, Nasa’i: 247/6, Ibn Majah: 2712, Ahmad: 186/4, Darimi: 419/2, Tayalisi: 1317, Abu Ya’la: 78/3, Bayhaqi: 264/6]
➋ In one narration these words are present:
لا تجوز وصية لوارث إلا أن تشاء الورثة
“A will is not permissible for an heir except if the heirs agree (then it is permissible).”
[Hasan: Talkhis al-Habeer: 199/3, Dar Qutni: 97/4, Bayhaqi: 263/6, Hafiz Ibn Hajar (may Allah have mercy on him) said it is Hasan.]
(Shawkani) If the other heirs consent, then the will (even for the heirs) will be valid, and this is like the case of general to specific.
(Ibn Hajar) If these additional words:
إلا أن يشاء الورثة
are authentic, then this is clear evidence. And the scholars have also taken this as proof in a conceptual sense that the prohibition is actually due to the rights of the other heirs. If they give permission, then there is no prohibition.
[Nil al-Awtar: 105/4 – 106, Fath al-Bari: 25/6]
(Malik) A will is not permissible for an heir except if the heirs of the deceased give permission.
[Muwatta with al-Maswi: 74/2]
(Siddiq Hasan Khan) The scholars are upon this –
[Al-Rawdah al-Nadiyyah: 679/2]
It is narrated from Hazrat Abu Darda (may Allah be pleased with him) that the Prophet (peace be upon him) said:
إن الله تـصــدق عليكم بثلث أموالكم عند وفاتكم زيادة فى حسناتكم ليجعلها لكم زيادة فى أعمالكم
“Allah Almighty has given you charity in your good deeds in exchange for one-third of your wealth at the time of your death so that it increases your (good) deeds through it.”
[Hasan: Irwa al-Ghalil: 1641, Ibn Majah: 2709, Kitab al-Wasaya: Bab al-Wasiyah bil-Thulth, Nasb al-Rayah: 400/4, Bayhaqi: 269/6, Dar Qutni: 150/4, Talkhis al-Jir: 91/4, Majma’ al-Zawa’id: 212/4, Ahmad: 441/6, Kashf al-Astar: 139/2, al-Halilah li Abi Na’im: 104/6]
This hadith is proof that a will of one-third of wealth increases good deeds, and making a will for sinful acts is not permissible because the Book and Sunnah command avoidance of sin. Although the will does not explicitly state that it must be without sin, the evidences that indicate avoidance of sin also indicate avoidance of making a will for sin.
[Al-Rawdah al-Nadiyyah: 680/2]
This proximity (in virtuous deeds) can be up to one-third.
➊ Hazrat Ibn Abbas (may Allah be pleased with them both) said that he wished people would reduce the will from one-third to one-quarter (which is what I prefer) because the Messenger of Allah (peace be upon him) said:
الثلث والثلث كثير
“Make a will for one-third, but even one-third is too much.”
[Bukhari: 2743, Book of Wills: Chapter on Willing One-Third, Muslim: 1629]
➋ Hazrat Saad bin Abi Waqqas (may Allah be pleased with him) asked the Messenger of Allah (peace be upon him), “O Messenger of Allah! I am a wealthy man and my only heir is my one daughter. Should I give two-thirds of my wealth in charity and good deeds?” He (peace be upon him) said, “No.” He asked again, “Should I give half of my wealth in charity?” He (peace be upon him) said, “No.” He asked a third time, “Then can I give one-third of my wealth in charity?” He (peace be upon him) said:
الثلث والثلث كثير إنك إن تذر ورثتك أغنياء خير من أن تذرهم عالة يتكففون الناس
“Yes, but even one-third is too much. It is better for you to leave your heirs wealthy than to leave them needy and begging from people.”
[Muwatta: 763/2, Bukhari: 1295, Book of Funerals: Chapter on the Elegy of the Prophet Saad bin Khawlah, Muslim: 1628, Abu Dawood: 2864, Tirmidhi: 2116, Nasa’i: 241/6, Ibn Majah: 2708, Ahmad: 179/1, Darimi: 407/2, Minhaj al-Ma’bud: 282/1, Abdul Razzaq: 64/9, Humaydi: 36/1, Ibn al-Jarood: 947, Abu Ya’la: 92/2, Ibn Hibban: 4235, Sharh Ma’ani al-Athar: 379/4, Bayhaqi: 268/6]
➌ Hazrat Imran bin Husain (may Allah be pleased with him) said that a man freed six of his slaves at the time of his death while he had no other wealth. The Messenger of Allah (peace be upon him) cast lots among them, freeing two and keeping four as slaves.
[Sahih: Sahih Abu Dawood: 3349, Book of Emancipation: Chapter on One Who Frees Slaves Not Reaching One-Third, Abu Dawood: 3958, Ahmad: 341/5, Nasa’i: 6249 – Al-Kubra]
➍ A narration from Hazrat Abu Zaid (may Allah be pleased with him) reports that the Prophet (peace be upon him) said:
لو شهدته قبل أن يدفن لم يدفن فى مقابر المسلمين
“If I had been present before burying him (who freed all his slaves at the time of death), he would not have been buried in the Muslims’ cemetery.”
[Sahih: Sahih Abu Dawood: 3351, Book of Emancipation: Chapter on One Who Frees Slaves Not Reaching One-Third, Abu Dawood: 3960]
(Nawawi) If the heirs are poor, it is better to make a will for less than one-third of the wealth, and if they are wealthy, then it is not recommended.
[Sharh Muslim: 89/6 – 90]
If there is no heir at all,
then can a bequest be made for more than one-third of the property? There is a difference of opinion on this issue:
(Jamhur) It is not permissible under any circumstances to bequeath more than one-third of the property.
(Ahnaf) In this case, it is permissible to bequeath more than one-third of the property because the Quran mentions bequest in an absolute manner, and then the Sunnah restricted it for those who have heirs. For those who have no heirs, the Quranic ruling remains applicable.
[Al-Umm: 36/4, Al-Muhadhdhab: 451/1, Hashiyat Ibn Abidin: 656/6]
But it is obligatory to repay the debt first. If a person leaves nothing for the repayment of the debt, the ruler of the time will pay it from the Bayt al-Mal.
➊ It is a Prophetic hadith:
أن النبى صلى الله عليه وسلم قضى بالدين قبل الوصية
“The Prophet (peace be upon him) decided that debt should be paid before bequest.”
[Bukhari: Qabl al-Hadith / 2750, Kitab al-Wasaya: Bab Ta’wil Qawluhu Ta’ala: Man Ba’da Wasiyyatin Yuwassa Biha Aw Dayn]
➋ When the brother of Hazrat Saad bin Atul passed away, he left behind three hundred dirhams and dependents. Saad says that I intended to spend those dirhams on his family, but the Prophet (peace be upon him) said:
إن أخاك محتبس بـديـنـه فاقض عنه
“Indeed, your brother has been imprisoned because of his debt, so pay it on his behalf.”
He said, O Messenger of Allah (peace be upon him)! I have paid, only one woman claimed dinars but she has no proof. The Prophet (peace be upon him) said:
فاعطها فإنها محقة
“Pay her because she is entitled.”
[Sahih: Sahih Ibn Majah: 1973, Kitab al-Ahkam: Bab Ada’ al-Dayn ‘an al-Mayyit, Ahmad: 136/4, Ibn Majah: 2433]
It is narrated from Hazrat Abu Huraira (may Allah be pleased with him) that the Messenger of Allah (peace be upon him) said:
من خلف مالا أو حقا فلورثته ومن خلف كلا أو دينا فكله إلى ودينه إلى
“Whoever leaves behind wealth or rights, it is for his heirs, and whoever leaves behind a burden or debt, then its burden is upon me and its debt is also upon me.”
[Bukhari: 5371, 2298, Kitab al-Nafaqat: Bab Qawl al-Nabi (peace be upon him) Man Taraka Kulla Aw Diyaa’an Fa’ila, Muslim: 1619, Tirmidhi: 1070, Nasai: 66/4, Ahmad: 330/3, Abu Dawood: 3343, Mawarid al-Zamaan: 1162, Dar Qutni: 79/3]
Hadiths with the same meaning are also narrated from Hazrat Abu Saeed (may Allah be pleased with him), Hazrat Salman (may Allah be pleased with him), and Hazrat Abu Umamah (may Allah be pleased with him).
[Bayhaqi: 73/6, Dar Qutni: 78/3, Majma’ al-Zawa’id: 332/5, Talkhis al-Habeer: 48/3]
