Source: Fiqhi Ahkam and Masail in the Light of Quran and Hadith, Inheritance Issues: Volume 02: Page 168
All praise is due to Allah, and blessings and peace be upon the Messenger of Allah. To proceed!
A person's state of health and state of illness differ in the sense that when he conducts any financial transaction within the limits of Shariah, while in a state of sound mind, it is valid and no one has the right to object or correct him. For this reason, giving charity and donations in a state of health brings many times more reward and blessings compared to giving charity and donations in a state of illness.
Allah Almighty says:
﴿وَأَنفِقوا مِن ما رَزَقنـٰكُم مِن قَبلِ أَن يَأتِىَ أَحَدَكُمُ المَوتُ فَيَقولَ رَبِّ لَولا أَخَّرتَنى إِلىٰ أَجَلٍ قَريبٍ فَأَصَّدَّقَ وَأَكُن مِنَ الصّـٰلِحينَ ﴿١٠﴾ وَلَن يُؤَخِّرَ اللَّهُ نَفسًا إِذا جاءَ أَجَلُها وَاللَّهُ خَبيرٌ بِما تَعمَلونَ ﴿١١﴾... سورة المنافقون
"And spend out of what We have provided for you before death comes to any of you and he says, 'My Lord, why did You not delay me for a little while so I could give charity and be among the righteous?' (10) But never will Allah delay a soul when its time has come. And Allah is Acquainted with what you do."
Reference: Al-Munafiqun: 63:10-11
When the Messenger of Allah, peace be upon him, was asked, "Which charity is the best?" he, peace be upon him, said:
"أَنْ تَصَدَّقَ وَأَنْتَ صَحِيحٌ شَحِيحٌ تَخْشَى الْفَقْرَ وَتَأْمُلُ الْغِنَى وَلا تُمْهِلُ حَتَّى إِذَا بَلَغَتْ الْحُلْقُومَ قُلْتَ لِفُلانٍ كَذَا وَلِفُلانٍ كَذَا وَقَدْ كَانَ لِفُلانٍ"
"Give charity in such a state that you are healthy and desirous of wealth, hoping to become rich, fearing poverty, and do not delay charity so much that when death reaches the throat, you say: this much is for so-and-so and that much is for so-and-so, while he has already become the property of so-and-so."
Reference: Sahih al-Bukhari, Al-Wasaya, Chapter on Charity at Death, Hadith 2748; Sahih Muslim, Zakat, Chapter on the Best Charity, Sahih al-Sheikh, Hadith 1032
Two Types of Illness
❀ ① An illness in which generally there is no fear of death
For example: a toothache, minor pain in the eye or head. The ruling on the financial dealings of such a patient is the same as when in a state of health. In this state, a person can give all his wealth as a gift.
And if such a minor illness later becomes serious and results in death, then the charity and gift given in this state will also be counted under the ruling of charity given in a state of health.
❀ ② A disease in which there is usually a risk of death
Such a patient is allowed to dispose of only up to one-third of their total wealth in charity and donations. Therefore, if their donations or charities are up to one-third of the wealth or less, they will be valid, and if they exceed one-third, their implementation after death will not occur without the consent and permission of the heirs.
The Prophet Muhammad (peace be upon him) said:
"إنَّ اللَّهَ تَصَدَّقَ عَلَيْكُمْ عِنْدَ وَفَاتِكُمْ بِثُلُثِ أَمْوَالِكُمْ زِيَادَةً لَكُمْ فِي أَعْمَالِكُمْ "
"Allah Almighty has shown kindness by allowing you to bequeath one-third of your wealth at the time of death so that you may increase your good deeds."
Reference: Sunan Ibn Majah, Book of Wills, Hadith 2709; Musnad Ahmad 6/441440; Sunan al-Daraqutni 4/149 Hadith 4245 wording: "an increase in your good deeds, so that He may make it a charity in your deeds"
This hadith and other hadiths in this chapter make it clear that a person has the authority to spend up to one-third of their total wealth according to their will at the time of death. This is the view of the majority of scholars because when a person is afflicted with such a dangerous illness that death is highly likely, giving away the entire wealth at such a time can cause harm to the heirs. For this reason, such donations are limited to one-third, similar to a will.
Situations in which the danger of death is imminent
Just as the ruling applies to a terminal illness, the same ruling applies to situations where a person faces a severe risk of death, for example:
✔ A dangerous epidemic breaks out in a city.
✔ A person participates in a battlefield.
✔ A person is caught in a sea storm and hit by waves.
In these circumstances, it is not permissible to give more than one-third of the property as a gift, unless the heirs give permission.
And if in this condition a person gives a gift to one of his heirs and then passes away, that gift will not be valid without the permission of the other heirs.
However, if the patient or the person in danger recovers from this condition, then all his gifts will be valid, because the obstacle has been removed.
Ruling for a Chronic Patient
A person who is suffering from a chronic illness but is not bedridden, his charity and gifts will be like those of a healthy person, and he can spend his entire wealth in the way of Allah, because in such an illness there is no fear of death coming quickly, therefore this is like the ruling for old age.
But if he is bedridden due to a chronic illness, then the ruling is the same as for a person suffering from a dangerous disease. He cannot bequeath more than one-third of his wealth in favor of a non-heir, and a bequest in favor of an heir will only be valid if the other heirs give their permission.
When is the one-third of wealth considered valid?
The amount of one-third of the wealth will be considered at the time of death, because this is the time when bequests become obligatory and entitled, and bequests and gifts from the one-third of the wealth are also enforced at this time.
If the inheritance is small, then gifts will take precedence over bequests, because they are obligatory for the patient, just as giving a gift in a state of health takes precedence over a bequest.
Four differences between gift and bequest
❀ ① Consideration of Order
In a will, it is not considered that the one for whom the will was made first should be given first, and the one for whom it was made later should be given later, because a will is a gift that takes effect after death and happens all at once.
In contrast, in a gift, the order of precedence matters, meaning the one who received the gift first has the prior right, because it becomes binding on the giver.
❀ ② Rule of Revocation
Once possession of a gift is taken, the giver cannot take it back, unlike a will, because a will becomes binding after death, so the testator can revoke the will during his lifetime.
❀ ③ Time of Acceptance
In a gift, acceptance is considered at the time the gift is given, because it is immediate ownership.
In a will, since ownership is established after death, acceptance is considered after death.
❀ ④ Proof of Ownership
Ownership is established immediately upon acceptance in a gift, unlike a will, because in a will ownership is not established before death, rather its transfer occurs after death.
Rules of Will
The literal meaning of will is "to join", because through it some matters of life are joined with some matters after death, and the testator also joins some of his actions, which were permissible during life, to continue after death.
In the terminology of jurists, the meaning of will is: "to order a specific portion of the estate to be allocated to a person or a purpose after death"
or in other words: "to make a gift of wealth after death"
Legitimacy of Will
The legitimacy of will is established by the Book of Allah, the Sunnah of the Messenger of Allah ﷺ, and consensus.
Allah Almighty says:
﴿ كُتِبَ عَلَيكُم إِذا حَضَرَ أَحَدَكُمُ المَوتُ إِن تَرَكَ خَيرًا الوَصِيَّةُ لِلوٰلِدَينِ وَالأَقرَبينَ بِالمَعروفِ حَقًّا عَلَى المُتَّقينَ ﴿١٨٠﴾... سورة البقرة
"It has been made obligatory upon you that when any of you is about to die and leaves behind wealth, he should make a bequest for his parents and relatives in kindness."
Reference: Al-Baqarah:2/180.
He also said:
﴿مِن بَعدِ وَصِيَّةٍ يوصىٰ بِها أَو دَينٍ... ﴿١٢﴾... سورة النساء
"(This distribution) will be after fulfilling the bequest or paying off the debt."
Reference: An-Nisa:4/11.
And the Prophet ﷺ said:
"إِنَّ اللَّهَ تَصَدَّقَ عَلَيْكُمْ بِثُلُثِ أَمْوَالِكُمْ عِنْدَ وَفَاتِكُمْ؛ زِيَادَةً فِي حَسَنَاتِكُمْ"
"Allah has shown mercy to you by commanding that one-third of the wealth be spent at the time of death so that your good deeds may increase."
Reference: (Weak) Sunan Ibn Majah, Al-Wasaya, Chapter on Bequest by Debt, Hadith 2709; Sunan ad-Daraqutni 4/149, Hadith 4245
There is consensus among the scholars of the Ummah on the permissibility of bequest.
When is bequest obligatory and when is it recommended?
Bequest is sometimes obligatory and sometimes recommended.
❀ Obligatory Bequest
It is obligatory to make a bequest regarding every right that either one owes to others or others owe to him, that is, rights related to transactions, and for which there is no other means of proof. To prevent the loss of such rights, bequest is necessary.
The Messenger of Allah, peace and blessings be upon him, said:
"مَا حَقُّ امْرِئٍ مُسْلِمٍ ، لَهُ شَيْءٌ يُوصَى فِيهِ ، يَبِيتُ لَيْلَتَيْنِ إِلَّا وَوَصِيَّتُهُ عِنْدَهُ مَكْتُوبَةٌ "
"It is not permissible for a Muslim to spend two nights without having his will written if he intends to make a will."
Reference: Sahih al-Bukhari, The Book of Wills, Hadith 2738; Sahih Muslim, The Book of Wills, Hadith 1627
Therefore, if he has trusts of people or if there are rights of people upon him, it is obligatory for him to write and clarify them.
❀ Recommended Will
This is a will in which a person bequeaths a specific portion of his wealth for a good cause so that the reward continues to reach him even after his death. In such cases, Shariah permits a will up to one-third of the wealth, and this is a great mercy from Allah so that a person can accumulate as many good deeds as possible.
Will of a sensible child
The will of a sensible child is valid, just as his prayer is valid.
And when the testator makes someone a witness to his will or writes it with his own hand, the will is established.
A will less than one-third is preferable
Among the rules of wills is that the will should be one-third of the property or less. According to some scholars, it is recommended that the will be even less than one-third.
This opinion is held by Sayyiduna Abu Bakr Siddiq (may Allah be pleased with him), Sayyiduna Ali ibn Abi Talib (may Allah be pleased with him), and Sayyiduna Abdullah ibn Abbas (may Allah be pleased with him).
Sayyiduna Abu Bakr Siddiq (may Allah be pleased with him) said, based on the command of Allah:
﴿وَاعلَموا أَنَّما غَنِمتُم مِن شَىءٍ فَأَنَّ لِلَّهِ خُمُسَهُ...﴿٤١﴾... سورة الانفال
"And know that whatever you obtain of war booty - then indeed, for Allah is one-fifth of it."
Reference: Al-Anfal: 8/41.
He said: "I prefer the will of one-fifth (khums)."
Reference: (Weak) Sunan al-Kubra by Bayhaqi 6/270, Arwa' al-Ghalil 6/85 Hadith 1649
Sayyiduna Ali ibn Abi Talib (may Allah be pleased with him) said: "I consider a bequest of one-fifth better than a bequest of one-fourth."
Reference: (Weak) Sunan al-Kubra by Bayhaqi 6/270, Arwa al-Ghaleel 6/85 Hadith 1650
Sayyiduna Ibn Abbas (may Allah be pleased with him) said: "I wish people would make a bequest of one-fourth instead of one-third, because the Messenger of Allah (peace be upon him) said:"
"الثُّلُثُ وَالثُّلُثُ كَثِيرٌ "
"A bequest of one-third is valid, but one-third is too much."
Reference: Sunan Abi Dawood, Book of Wills, Chapter on What Has Been Related About the Bequest to the Heir 2870, Jami` at-Tirmidhi, Book of Wills, Chapter on What Has Been Related About Bequests to Heirs Hadith 2120, Musnad Ahmad 4/186-187
Ruling on Bequests Exceeding One-Third When Heirs Are Present
For a person who has heirs, it is not permissible to make a bequest exceeding one-third of the estate. However, if the heirs consent and permit, then a bequest exceeding one-third can also be valid, because the rights of the heirs are involved in the property exceeding one-third. When the rightful owners themselves waive their rights, this is valid. And this permission will be considered after death.
Bequest in Favor of the Heir
One important ruling among the rules of bequest is that it is not permissible to make a bequest in favor of an heir, because the Messenger of Allah, peace be upon him, said:
"لَاوَصِيَّةَ لِوَارِثٍ"
"There is no bequest for an heir."
Reference: Sahih al-Bukhari, Funerals, Chapter: Lamentation for the Prophet, Sa'd bin Khawlah, Hadith 1295, Sunan al-Kubra by Bayhaqi 6/269
Sheikh Taqi al-Din Ibn Taymiyyah, may Allah have mercy on him, says: "The Ummah is unanimous on this issue."
Reference: Minhaj al-Sunnah al-Nabawiyyah 2/160
Imam Shafi'i, may Allah have mercy on him, says: "This hadith is mutawatir (mass-transmitted)." He further states that we found among the muftis and scholars from whom we acquired knowledge, both Quraysh and non-Quraysh, no disagreement on the fact that the Prophet, peace be upon him, said at the conquest of Mecca: There is no bequest for an heir. And they also report this from earlier scholars.
Reference: Al-Majmu' by Nawawi 16/374
However, if the heirs give permission, the will in favor of the heir will be valid, because they are willingly relinquishing their right. And a will in favor of a non-heir, as well as a will up to one-third in favor of an heir, will only be valid with the consent of the heirs when the deceased is in the terminal stage of illness or has passed away.
For whom is a will appropriate?
The rules of will also include that the person who makes the will should be one who has abundant wealth and whose heirs are not needy, because Allah Almighty has said:
﴿كُتِبَ عَلَيكُم إِذا حَضَرَ أَحَدَكُمُ المَوتُ إِن تَرَكَ خَيرًا الوَصِيَّةُ...﴿١٨٠﴾... سورة البقرة
"It is prescribed for you, when death approaches one of you, if he leaves wealth, that he makes a bequest for the parents and near relatives according to what is acceptable."
Reference: Al-Baqarah: 2/180.
In common usage, "khair" means "abundant wealth".
If the situation is the opposite, i.e., the wealth is little or the heirs are needy, then making a will is disliked, because it necessitates favoring others over needy relatives, and this is not correct.
The Messenger of Allah, peace and blessings be upon him, said to Sayyiduna Sa'd ibn Abi Waqqas, may Allah be pleased with him:
"إِنَّكَ أَنْ تَذَرَ وَرَثَتَكَ أَغْنِيَاءَ خَيْرٌ مِنْ أَنْ تَذَرَهُمْ عَالَةً يَتَكَفَّفُونَ النَّاسَ "
"It is better to leave your heirs wealthy than to leave them in a state where they have to beg in front of people."
Reference: Sahih al-Bukhari, Funerals, Chapter: Elegy of the Prophet ﷺ, Sa’d bin Khawlah, Hadith 1295
Imam Shu’bi, may Allah have mercy on him, said: "The best wealth in terms of reward and recompense is that which a person leaves for his children, so that they become independent of others."
Reference: Al-Mughni wal-Sharh al-Kabir 6/447
Sayyiduna Ali, may Allah be pleased with him, said to a man: "The little wealth you are leaving behind, let it remain for your heirs only."
Reference: Tafsir Ibn Kathir 1/180, Al-Baqarah: 2/180
Besides this, many companions of the Prophet Muhammad ﷺ, may Allah be pleased with them all, did not make any will.
Will that harms the heirs
If a testator wishes to harm his heirs through a will, then this act is forbidden and sinful, because Allah Almighty has said:
"غَيْرَ مُضَارٍّ "
"While he does not harm anyone."
Reference: An-Nisa: 4/12
In a hadith it is stated:
"إِنَّ الرَّجُلَ لَيَعْمَلُ وَالْمَرْأَةُ بِطَاعَةِ اللَّهِ سِتِّينَ سَنَةً ثُمَّ يَحْضُرُهُمَا الْمَوْتُ فَيُضَارَّانِ فِي الْوَصِيَّةِ فَتَجِبُ لَهُمَا النَّارُ "
"Indeed, a man and a woman may obey Allah Almighty for sixty years, and then when death comes to them, they harm their heirs through a will, and thus Hell becomes obligatory for them."
Reference: (Weak) Sunan Abi Dawood, Wills, Chapter on the dislike of causing harm in a will, Hadith 2867; Jami` at-Tirmidhi, Wills, Chapter on harm in a will, Hadith 2117 and the wording is his; Sunan Ibn Majah, Wills, Chapter on deceit in a will, Hadith 2754; Musnad Ahmad 2/278
Sayyiduna Ibn Abbas (may Allah be pleased with him) said:
" الإضرار في الوصية من الكبائر "
"Harming an heir through a will is a major sin."
Reference: Al-Sunan al-Kubra by An-Nasa'i 6/320
Imam Shawkani, may Allah have mercy on him, says: The meaning of Allah Almighty's command "غَيْرَ مُضَارٍّ" is that the testator should make a will in such a way that the heirs do not suffer any harm in any manner, for example, by acknowledging something that is not actually his responsibility, or making a will with the sole intention of harming the heirs, or making an absolute will in favor of any heir, or bequeathing more than one-third to a non-heir without the consent of the heirs.
All these cases are invalid and rejected, and none of these cases will be enforced, whether the will is for one-third or less than that. And Allah knows best.
Reference: Tafsir Fath al-Qadeer 1/487
One who has no heir
One of the rulings of wills is that a person who has no heir can bequeath his entire wealth, because the Prophet, peace be upon him, said to Saad ibn Abi Waqqas, may Allah be pleased with him:
"إِنَّكَ أَنْ تَذَرَ وَرَثَتَكَ أَغْنِيَاءَ خَيْرٌ مِنْ أَنْ تَذَرَهُمْ عَالَةً يَتَكَفَّفُونَ النَّاسَ "
"If you leave your heirs wealthy, it is better than leaving them in a state where they have to beg from people."
Reference: Sahih al-Bukhari, Funerals, Chapter: Elegy of the Prophet ﷺ, Sa'd bin Khawlah, Hadith 1295
In this narration, the prohibition of bequeathing the entire wealth is due to the heirs, so that they do not become needy.
But if a person has no heirs, then bequeathing the entire wealth is permissible, because in that case, it does not affect the rights of any heir or creditor. In this situation, it is like a person giving all his wealth in charity while in good health.
The permissibility of this has also been transmitted from Sayyiduna Ibn Mas'ud (may Allah be pleased with him), and a group of scholars also hold this view.
Imam Ibn Qayyim, may Allah have mercy on him, states: "The correct view is that a person who has no heirs has the authority to bequeath their entire wealth. The Shariah prohibits bequeathing more than one-third due to the presence of heirs. If a person has no heirs, there can be no objection to their financial dispositions."
Reference: I'lam al-Muwaqqi'in 4/35
When one-third of the wealth is not sufficient for all the legatees
If the testator bequeaths one-third of the wealth, but that amount is not sufficient to fully satisfy all the legatees according to the bequest, and the heirs do not permit spending more than the bequeathed one-third, then each legatee will receive less than their bequest in proportion, and the mutual ratios among them will be maintained. There will be no consideration of priority or delay, because each person is receiving the wealth as a gift after the death of the testator; therefore, the wealth will be distributed at once, even if less than the original right.
This ruling is like the issue called the problem of 'Aila', in which every heir receives less than their fixed share.
Example
If someone bequeaths 100 rupees for one person, 100 rupees for another, 50 rupees for the third, 30 rupees for the fourth, and 20 rupees for the fifth, while the one-third of the estate is only 100 rupees, and the total bequest amounts to 300 rupees, then each legatee will be given one-third of the bequest fixed for them.
That is:
✔ The one who was bequeathed 100 rupees will get about 33 rupees and 33 paisa
✔ The second 100 rupees legatee will also get the same
✔ The one bequeathed 50 rupees will get approximately 16 rupees 66 paisa, but according to the original text, the third one is written to get ten rupees, and therefore, the calculation for the rest will be by analogy.
The validity or invalidity of the will will be considered from the time of death
The validity or invalidity of the will will be considered from the time of death.
For example, if someone makes a will in favor of an heir, but at the time of death that person is no longer an heir, then the will in their favor will be valid.
For instance: a will was made in favor of a brother who was initially an heir, but later the deceased had a son, so the brother was no longer an heir; therefore, the will in his favor will be valid.
Conversely, if a will was made in favor of a person who was considered a non-heir, but at the time of death that person became an heir, then the will will not be valid without the permission of the heirs.
For example: a will was made in favor of a brother in the presence of a son, which was correct at that time, but before the death of the testator, his son died, so now the brother became an heir; therefore, without the permission of the heirs, the will in favor of this brother will no longer be valid.
This also clarifies that accepting the will and taking possession of the bequeathed item will happen after the death of the testator, not before, because the right is established at the time of death.
Ibn Qudamah, may Allah have mercy on him, states: "Among the scholars, there is no disagreement on this issue that the validity of a will begins with death. If the will is for unspecified individuals, such as the poor and needy, or for many people, for example, the tribe of Banu Tamim, or for a certain cause, such as mosques, then acceptance is not a condition; rather, the will becomes binding merely upon death. And if the will is for a specific person, then acceptance after death is necessary."
Reference: Al-Mughni wal-Sharh al-Kabir 6/460, 473
Revocation of the Will
The testator can revoke his will either wholly or partially.
Sayyiduna Umar, may Allah be pleased with him, said: "A person can amend his will as he wishes."
Reference: Sunan al-Darimi, Al-Wasaya, Bab al-Ruju' al-Wasiyah, Hadith 32123211, and Al-Talkhis al-Jayyid 3/96 Hadith 1380
The scholars are unanimous on this.
Therefore, if he says: "I have revoked the will" or "I have canceled the will", then the will will be revoked, because the validity of the will depends on the death of the testator, and thus he has the right to revoke it during his lifetime.
For example, if he said: "If Zaid comes, then give to Zaid whatever I have bequeathed in favor of Amr."
Now, if Zaid comes during the lifetime of the testator, the bequeathed property will go to Zaid, because the testator has revoked the bequest in favor of Amr.
But if Zaid comes after the death of the testator, the bequest will be for Amr only, because the testator had died before Zaid's arrival, and the first bequest became fixed.
Debts will be paid before the bequest
Before the execution of the bequest, people's debts and the debts owed to Allah Almighty, i.e., obligatory duties such as Zakat, Hajj, vows, and expiations, will be paid, even if the deceased did not bequeath them.
Allah Almighty says:
﴿مِن بَعدِ وَصِيَّةٍ يوصىٰ بِها أَو دَينٍ... ﴿١٢﴾... سورة النساء
"These are the shares after the bequest which is made by the testator or after the payment of debt."
Reference: An-Nisa: 4/11.
Sayyidina Ali (may Allah be pleased with him) said:
"إن النبي صلى الله عليه وسلم قضى بالدين قبل الوصية "
"The Messenger of Allah, peace be upon him, ordered the repayment of debts before bequest."
Reference: Sahih al-Bukhari, The Book of Wills, Chapter "After a Bequest or Debt," before Hadith 2750, Jami` at-Tirmidhi, The Book of Wills, Chapter on What Has Been Related About Debt Before Bequest, Hadith 2122, Musnad Ahmad 1/79.131
In Sahih al-Bukhari it is stated:
"اقْضُوا اللَّهَ ، فَاللَّهُ أَحَقُّ بِالْوَفَاءِ "
"Repay the debts owed to Allah, for the repayment of Allah’s debts is more deserving."
Reference: Sahih al-Bukhari, The Reward of Hunting, Chapter on Pilgrimage and Vows for the Deceased, Hadith 1852
The summary is that the order will be:
❀ First, debts will be paid.
❀ Then the bequest will be executed.
❀ Then the inheritance will be distributed.
There is consensus among scholars on this order.
Although the execution of a will is postponed until the payment of debts, the mention of the will in the Holy Quran comes before the mention of debt. The wisdom behind this is that a will, like inheritance, is without compensation, so it is burdensome for a person to give it out, whereas a creditor can forcibly take his debt and a person is naturally concerned about his debt. Therefore, the mention of the will in the Quran is made first to encourage and emphasize its importance.
And the word (أَوْ) appears in the verse, which here means equality, that is, both the will and the debt are important, although the payment of debt takes precedence.
Warning against changing a valid will
The matter of the will is very important. Allah Almighty has strongly emphasized the execution of a valid will in the Holy Quran. That is why its mention has been made with importance. Whoever neglects the execution of a valid will or changes it without any Islamic evidence, a severe warning has been given for him.
Allah Almighty says:
﴿فَمَن بَدَّلَهُ بَعدَ ما سَمِعَهُ فَإِنَّما إِثمُهُ عَلَى الَّذينَ يُبَدِّلونَهُ إِنَّ اللَّهَ سَميعٌ عَليمٌ ﴿١٨١﴾... سورة البقرة
"Now whoever changes it after hearing it, his sin will be upon those who change it. Indeed, Allah is Hearing and Knowing."
Reference: Al-Baqarah:12-18.
Imam Shawkani, may Allah have mercy on him, writes in the exegesis of this verse: "Change means alteration. The warning mentioned in the verse is for the person who changes a will that is according to the truth and has neither excess nor deficiency. Therefore, the one who changes it will be sinful, but there will be no burden on the testator, because he was right in the will."
Reference: Tafsir Fath al-Qadeer 1/195
In whose favor is a will permissible?
A will is permissible for every person who is eligible to own property, whether he is a Muslim or a non-Muslim.
Allah Almighty says:
﴿إِلّا أَن تَفعَلوا إِلىٰ أَولِيائِكُم مَعروفًا... ﴿٦﴾... سورةالاحزاب
"(Except that you wish to deal kindly and justly with your friends)."
Reference: Al-Ahzab:33-6.
Hazrat Muhammad bin Hanfiya says: "This verse is evidence for the permissibility of a Muslim's will in favor of a Jew or Christian."
Reference: Tafsir al-Tabari 21/124
Sayyiduna Umar ibn al-Khattab (may Allah be pleased with him) gave cloth to his polytheist brother.
Reference: Sahih Muslim, Clothing and Adornment, Chapter: Prohibition of Silk and the like for Men, Hadith 2068
Sayyida Asma (may Allah be pleased with her) maintained ties of kinship with her polytheist mother, who wanted to have a relationship with her.
Reference: Sahih al-Bukhari, Gifts and their Virtue, Chapter: Gifts to Polytheists, Hadith 2620
Umm al-Mu'minin Sayyida Safiyya (may Allah be pleased with her) bequeathed one-third of her inheritance in favor of her Jewish brother.
Reference: Sunan al-Darimi, Wills, Chapter: The Will, Hadith of the People of Dhimmah, Hadith 3299, and Al-Talkhis al-Jayyid 3/93 Hadith 1380
And in support of its permissibility, Allah Almighty says:
﴿لا يَنهىٰكُمُ اللَّهُ عَنِ الَّذينَ لَم يُقـٰتِلوكُم فِى الدّينِ وَلَم يُخرِجوكُم مِن دِيـٰرِكُم أَن تَبَرّوهُم وَتُقسِطوا إِلَيهِم إِنَّ اللَّهَ يُحِبُّ المُقسِطينَ ﴿٨﴾... سورة الممتحنة
"Those who did not fight you because of religion and did not expel you from your homes—Allah does not forbid you from being good and just toward those who did not fight you because of religion and did not expel you. Indeed, Allah loves those who act justly."
Reference: Al-Mumtahina: 60:8
Limits of Bequeathing in Favor of a Disbeliever
It is permissible for a Muslim to make a will in favor of a specific disbeliever, as has been mentioned.
However, it is not permissible to make a will in favor of a non-specific disbeliever, for example, a general will for Jews, Christians, or their poor.
Similarly, it is not permissible to make a specific disbeliever the owner of something through a will if making them the owner is not legally valid in Shariah, for example:
✔ A copy of the Quran
✔ A Muslim slave
✔ Weapons
Will in favor of an unborn child
It is permissible to make a will in favor of a child in the mother's womb, provided it is established that the child was in the womb at the time of the will.
This will be known if the pregnant woman gives birth within six full months from the time of the will, provided her husband or master is present.
And if she does not have a husband or master, then the child is born within less than four years.
Because when such an unborn child can become an heir, then making a will in their favor is all the more permissible.
Reference: This issue is under consideration.
If the child is born dead, then the will made in their favor will become invalid.
However, a will is not valid in favor of a child whose existence is not present in the womb at the time of the will, for example, if someone says: "I bequeath for the child who will be in the womb of such and such woman in the future."
Will for Hajj
If someone makes a will regarding a large amount of wealth saying: "Let Hajj be performed from this wealth on my behalf"
then Hajj will be performed repeatedly from that wealth or several people will be sent, until the amount is exhausted.
And if the amount is small, then as much as can be spent on Hajj will be spent.
But if the testator has said that this large amount of mine should be spent on a single Hajj, then it will be spent on one Hajj only, because the apparent intention of the testator is to provide the pilgrim with the maximum benefit, comfort, and ease.
Who cannot benefit from the wealth of the will?
The person entrusted with the responsibility of executing the will cannot perform Hajj using the assets of the will.
Similarly, a person who is a beneficiary in the inheritance cannot benefit from this will, because apparently the testator's intention is to benefit others besides him.
Those who do not have the capacity to become owners
A will is not valid in favor of someone who does not have the capacity to become an owner, for example:
✔ Certain livestock
✔ The deceased
Wills for sinful acts
Making a will for sinful and disobedient acts is not permissible, for example:
✔ A will for the construction of churches or temples of disbelievers and polytheists
✔ A will for the construction of shrines
✔ A will for lighting lamps on them
✔ A will for their caretakers
In this ruling, it makes no difference whether the testator is a disbeliever or a Muslim.
Sheikh al-Islam Ibn Taymiyyah, may Allah have mercy on him, writes: "If a non-Muslim dhimmi bequeaths his property for one of his places of worship, it is not permissible for Muslims to issue a fatwa permitting it, because they should give the fatwa that Allah has commanded, and Allah's command is not to cooperate in sin, transgression, and disobedience. So how can cooperation in endowing property for places of disbelief and disobedience be permissible?"
Similarly, it is not correct to bequeath the publication and printing of abrogated books, such as the Torah and the Gospel, or misleading books, like those of heretics and atheists.
The Nature of the Bequeathed Item
Among the rules of bequest is that the bequeathed item, i.e., the thing bequeathed, should be in the form of property or something from which lawful profit can be obtained, even if it is not currently possible to hand it over.
For example:
✔ Bequest regarding a bird present in the air
✔ Bequest regarding a fetus in an animal's womb
✔ Bequest regarding milk in an animal's udders
✔ Bequest regarding a nonexistent item, such as if someone bequeaths that the fetus in their animal's womb or the fruit of a certain tree will belong to you forever or for one year.
If something is later obtained from this nonexistent item, it will belong to the legatee; otherwise, the bequest will become invalid, because the subject of the bequest no longer exists.
Bequest of an Unknown Item
The bequest of an unknown item is also valid, for example, if someone bequeaths a slave or a goat to a person, then the legatee will be given any slave or any goat.
New Property Acquired After the Bequest
If the testator bequeathed one-third of the property, and then acquired more property after the will, this new property will also be included in the one-third, because the one-third refers to that which is present at the time of death, not at the time of the will.
If the specifically bequeathed item is lost
If the testator bequeathed a specific item from his property to a person, but that item was lost before or after the testator's death, the will will become void, because the loss of the bequeathed item also ends the testator's right to it.
Bequest of "share" and "some property"
If someone did not specify the amount of property in the will and said: "A share of my property should be given to so-and-so"
then it will be understood as one-sixth of the total estate, because in Arabic terminology "share" is taken to mean one-sixth.
This is the opinion of Sayyiduna Ali ibn Abi Talib (may Allah be pleased with him) and Sayyiduna Abdullah ibn Mas'ud (may Allah be pleased with him).
Furthermore, the sixth part for a man is the minimum share among the obligatory shares, therefore the same will be intended in the will as well.
And if the testator says: "Give some wealth to so-and-so"
and does not specify the amount, then the heir will be given as much wealth as is commonly known as wealth, because there is no defined limit for it in language or Shariah.
Therefore, the heir will be given at least enough wealth to be considered wealthy, otherwise the intended purpose will not be achieved. And Allah knows best.
Rulings Regarding the Executor of the Will
"Wasi" or "Musi ilayh" refers to the person whom the deceased has entrusted with the responsibility of implementing the will in matters that he himself used to perform during his lifetime and in which deputation is valid, because the Musi ilayh acts as the deputy of the testator in executing the will.
Ruling on Accepting Deputation for the Will
Accepting the deputation of the testator is recommended and a cause of reward and blessing for the legatee, but this responsibility should be accepted only by the person who has the power to enforce the will and who is also trusted for their honesty.
Allah Almighty says:
﴿وَتَعاوَنوا عَلَى البِرِّ وَالتَّقوىٰ...﴿٢﴾... سورة المائدة
"Help one another in righteousness and piety."
Reference: Al-Ma'idah 5:2
And the Messenger of Allah (peace be upon him) said:
"وَاللَّهُ فِي عَوْنِ الْعَبْدِ مَا كَانَ الْعَبْدُ فِي عَوْنِ أَخِيهِ "
"Allah continues to help a servant as long as the servant is helping his brother."
Reference: Sahih Muslim, Dhikr and Supplication, Chapter on the virtue of gathering for the recitation of the Qur'an and remembrance, Hadith 2699
Moreover, a group among the Companions of the Prophet (may Allah be pleased with them all) appointed Sayyiduna Zubair (may Allah be pleased with him) as their deputy for the execution of their wills.
Similarly, Sayyiduna Ubaidah (may Allah be pleased with him) appointed Sayyiduna Umar ibn al-Khattab (may Allah be pleased with him) as responsible for executing his will.
And Sayyiduna Umar (may Allah be pleased with him) entrusted his daughter Sayyidah Hafsah (may Allah be pleased with her) with the responsibility of executing his will.
Reference: Sunan al-Darimi, Wills, Chapter on the will for women, Hadith 3298
And after Sayyida Hafsa رضي الله تعالى عنها, the eldest child was appointed responsible for it.
Who should not become a guardian?
A person who cannot implement the will of the testator or who is not trusted with their honesty should never accept this responsibility.
Conditions of a guardian
◈ The guardian must be a Muslim
It is not appropriate to place such an important responsibility on a non-Muslim.
◈ The guardian must be legally competent
That is, he must be sane and adult. Therefore, a child, mentally deficient, or insane person cannot be given this responsibility because they do not have the capacity for guardianship and control in financial matters.
However, if a child is made a guardian with the condition that he will implement the will after reaching adulthood, then this is correct.
The evidence for this is that the Messenger of Allah صلى الله عليه وسلم said:
"أميركم زيد بن حارثة، فإن قتل فجعفر بن أبى طالب"
"Your leader is Zaid bin Harithah رضي الله تعالى عنه, and if he is martyred, then appoint Ja'far bin Abi Talib رضي الله تعالى عنه as the leader."
Reference: Ash-Shahid by Ibn Abdul Barr 8/388
Appointing a woman as a guardian
A woman can be appointed as a guardian (Wasi), provided that she understands the matters of the will and its rulings and has the ability to execute the will.
Hazrat Umar (may Allah be pleased with him) appointed Sayyida Hafsa (may Allah be pleased with her) as his guardian.
Reference: Sunan al-Darimi, Chapter on Wills, Hadith 3298
The reason is that since a woman can give testimony like a man in certain situations, she can also be appointed as a guardian.
If the guardian lacks practical power
If a person does not have the power to execute the will but possesses understanding, wisdom, and intellect, he can still be appointed as a guardian; however, a helper should be appointed alongside him who has both the power and trustworthiness to execute the will.
More than one guardian
There can be more than one guardian, whether they are appointed simultaneously or one after another, provided that the first guardian has not been dismissed.
If there are multiple executors, all will participate in the execution of the will, and none of them will dispose of the property without the others.
If one of them goes missing, the ruler should appoint another person in his place who can properly carry out the affairs of the will.
Acceptance and Resignation of the Executor
The executor can accept the responsibility of the will both during the lifetime of the testator and after his death, and can also separate from this responsibility whenever he wishes, either during the testator's life or after his death.
Similarly, the testator can dismiss the executor whenever he wishes, because the executor's position is like that of an agent.
Can an Executor Appoint Another Executor?
An executor cannot appoint another person as executor, except if the testator has given him permission to do so, for example, the testator says: "I permit you to appoint whoever you want as executor."
The Property in a Financial Will Must Be Clear
When someone is given the responsibility to execute a financial will, the property must be clear and specific so that the executor can properly protect, supervise, and manage it.
The will should only include what was permissible for the testator
The act bequeathed should be something that the testator himself was permitted to do, for example:
✔ Paying off a debt
✔ Distributing one-third of the property
✔ Taking care of the children
The reason is that the executor is not authorized to manage anything without permission.
Therefore, if the testator himself does not have the authority to manage a certain property or right, the executor will not have that authority either, as is the case with agency.
Furthermore, the testator is the principal and the executor is his deputy or subordinate, and if the principal does not have the authority to perform a task, the deputy cannot have it either.
For example: It is not permissible for a woman to appoint someone as an executor for the care of her young children in the presence of their father, because the primary guardianship of the children does not belong to anyone other than the father.
The responsibility of a guardian is limited
The responsibility of a person appointed as a guardian is only to the extent of what they have been assigned. They are not responsible for other matters.
For example, if someone appoints a person as a guardian to pay off their debt, that person will not be a guardian in matters concerning their children, because they are an agent with limited authority and will only act in the matters they have been permitted.
If a non-Muslim appoints a Muslim as a guardian
A non-Muslim can appoint a Muslim as their guardian, provided that their inheritance is lawful.
However, if a Muslim is appointed as a guardian regarding wine, pork, or other forbidden items, this is not correct; rather, the Muslim should refuse, because accepting such responsibility is not permissible according to Shariah.
A guardian cannot keep wealth for themselves or their children
If the testator has said to his executor: "Spend one-third of my inheritance wherever you wish"
then it is not permissible for the executor to keep any part of it for himself.
Similarly, it is also not permissible for him to give that wealth to his children or heirs, because people might suspect that he has personally benefited against the will.
If a person dies in a forest
One of the rulings regarding wills is that if a person dies in a forest where there is no ruler and he has not appointed any executor, then any Muslim present there becomes responsible for distributing his inheritance, and should do whatever is beneficial for the deceased, such as selling, etc., because necessity demands it, otherwise the inheritance will be wasted.
And protecting the inheritance is a communal obligation (Fard Kifayah).
The deceased's funeral rites and shrouding will also be done from the same inheritance.
Rulings of Inheritance
The subject of inheritance is very important and worthy of attention. The Messenger of Allah, peace be upon him, encouraged learning and teaching this knowledge in many hadiths.
The Messenger of Allah, peace be upon him, said:
"تَعَلَّمُوا الْفَرَائِضَ وَعَلِّمُوهَا فَإِنَّهُ نِصْفُ الْعِلْمِ، وَهُوَ يُنْسَى، وَهُوَ أَوَّلُ شَيْءٍ يُنْزَعُ مِنْ أُمَّتِي"
"Learn the knowledge of inheritance and teach it, for it is half of knowledge, and it will be forgotten, and it is the first thing that will be taken away from my Ummah."
Reference: (Weak) Sunan Ibn Majah Al-Fara'id, Chapter on Encouragement to Teach Inheritance, Hadith 2719; Sunan al-Daraqutni 4/66 Hadith 4014
In one narration it is stated:
"فَإِنِّي امْرُؤٌ مَقْبُوضٌ وَالْعِلْمُ سَيُقْبَضُ وَتَظْهَرُ الْفِتَنُ حَتَّى يَخْتَلِفَ اثْنَانِ فِي فَرِيضَةٍ لَا يَجِدَانِ أَحَدًا يَفْصِلُ بَيْنَهُمَا"
"I am a person whose soul will be taken, and knowledge will be lifted, and trials will appear, until two people dispute over an inheritance matter but no one will be found to decide."
Reference: (Weak) Jami' al-Tirmidhi Al-Fara'id, Chapter on What Has Been Related About Teaching Inheritance, Hadith 2091; Sunan al-Darimi Introduction, Chapter on Following the Scholars, Hadith 227 and the wording is his
As the Prophet Muhammad (peace be upon him) had foretold, the situation now appears just as he described. The knowledge of inheritance has been neglected; most people have forgotten it, and today it is taught and studied very little in mosques and madrasas.
And if it is taught anywhere, it is done so in such a poor and superficial manner that neither the original purpose is achieved nor is there any assurance of the preservation of this knowledge.
Therefore, it is obligatory upon Muslims to strive to revive this knowledge, protect it, and arrange for its teaching in mosques, madrasas, and universities, because people have a great need for this knowledge, and especially the scholars bear a greater responsibility for it.
The Prophet Muhammad (peace be upon him) said:
"الْعِلْمُ ثَلَاثَةٌ ، وَمَا سِوَى ذَلِكَ فَهُوَ فَضْلٌ : آيَةٌ مُحْكَمَةٌ ، أَوْ سُنَّةٌ قَائِمَةٌ ، أَوْ فَرِيضَةٌ عَادِلَةٌ "
"There are three fundamental types of knowledge, and all others are additional virtues: knowledge of the clear verses, knowledge of the established Sunnah, or knowledge of inheritance which is based on justice and fairness."
Reference: (Weak) Sunan Abi Dawood, Inheritance, Chapter on Teaching Inheritance 2885, Sunan Ibn Majah, The Sunnah (Introduction), Chapter on Avoiding Opinion and Analogy, Hadith 54
Sayyiduna Umar ibn Al-Khattab (may Allah be pleased with him) said:
"تَعَلَّمُوا الْفَرَائِضَ فَإِنَّهَا مِنْ دِينِكُمْ"
"Learn the knowledge of inheritance, for it is a part of your religion."
Reference: Al-Sunan Al-Kubra by Al-Bayhaqi 6/209
Sayyiduna Ibn Mas'ud (may Allah be pleased with him) said:
"مَنْ قَرَأَ الْقُرْآنَ، فَلْيَتَعَلَّمْ الْفَرَائِضَ"
"Whoever recites the Qur'an, he should also learn the knowledge of inheritance."
Reference: Al-Sunan Al-Kubra by Al-Bayhaqi 5/209
The statement of the Messenger of Allah (peace be upon him): "The knowledge of inheritance is half of knowledge" has been explained to mean that a person has two states:
① Life
② Death
The knowledge of inheritance relates to the rulings after death, whereas most other knowledge pertains to the rulings during life.
Some scholars have explained this to mean that all people come into contact with this knowledge, that is, people are more in need of the knowledge of inheritance in the division of estates.
And some scholars have mentioned other meanings as well.
In any case, the purpose is that extraordinary care is needed in the teaching and learning of this knowledge.
Definition of the Knowledge of Inheritance
This knowledge is called Ilm al-Fara'id. Fara'id is the plural of Faridah, which is derived from Fard. The literal meaning of Fard is to appoint, because in this knowledge the shares of the heirs are appointed.
Faridah is the appointed share that Shariah has assigned to the rightful person.
The definition of Ilm al-Fara'id is: "To know the principles related to jurisprudence and arithmetic through which the shares of the heirs from the inheritance are determined."
Four Rights Related to the Inheritance
There are four rights related to the inheritance of the deceased.
Reference: The original book mentions five, and this correction is made from the authentic books of inheritance knowledge, Al-Siraji and Fiqh al-Mawarith.
❀ ① Preparation and Burial
First of all, all expenses from shrouding to burial will be paid from the inheritance of the deceased.
❀ ② Payment of Debt
After that, all debts will be paid, whether they are the rights of Allah Almighty, such as Zakat, Kaffarat, vows, and obligatory Hajj, or the rights of people.
❀ ③ Execution of the Will
Then, from the wealth of the deceased, wills will be fulfilled up to a maximum of one-third (1/3).
❀ ④ Distribution of Inheritance
After the payment of all these rights, whatever wealth remains will be distributed among the heirs according to the Book and Sunnah.
The distribution of inheritance will begin with the obligatory heirs (As'hab al-Furood), and if any wealth remains, it will be given to the agnates (Asabat), whose details will be provided later.
The Prohibition of Changing the Rules of Inheritance
It is not permissible to make any changes in the inheritance rules prescribed by Shariah. Changing them is disbelief against Allah Almighty.
Allah Almighty says:
﴿تِلكَ حُدودُ اللَّهِ وَمَن يُطِعِ اللَّهَ وَرَسولَهُ يُدخِلهُ جَنّـٰتٍ تَجرى مِن تَحتِهَا الأَنهـٰرُ خـٰلِدينَ فيها وَذٰلِكَ الفَوزُ العَظيمُ ﴿١٣﴾ وَمَن يَعصِ اللَّهَ وَرَسولَهُ وَيَتَعَدَّ حُدودَهُ يُدخِلهُ نارًا خـٰلِدًا فيها وَلَهُ عَذابٌ مُهينٌ ﴿١٤﴾... سورة النساء
"These are the limits set by Allah, and whoever obeys Allah and His Messenger, He will admit him to gardens beneath which rivers flow, to abide therein forever; and that is the great success. (13) But whoever disobeys Allah and His Messenger and transgresses His limits, He will cast him into the Fire to abide therein forever, and for him is a humiliating punishment."
Reference: An-Nisa: 4:13-14
Imam Shawkani, may Allah have mercy on him, states in his Tafsir: In Allah Almighty's command "تِلْكَ حُدُودُ اللَّـهِ" there is a reference to the previous inheritance rulings, and they are called the limits of Allah because it is not permissible to go beyond these limits. And in "وَمَن يُطِعِ اللَّـهَ وَرَسُولَهُ" there is an indication towards the division of inheritance and other Shariah rulings, as the general meaning of the words of the verse "يُدْخِلْهُ جَنَّاتٍ تَجْرِي مِن تَحْتِهَا الْأَنْهَارُ" also points to this.
In Sunan Ibn Majah, it is narrated from Hazrat Anas, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said:
"من قطع ميراث وارثه؛ قطع الله ميراثه من الجنة يوم القيامة"
"Whoever deprives an heir of his inheritance, Allah Almighty will deprive him of inheritance in Paradise on the Day of Judgment."
Reference: Tafsir Fath al-Qadeer An-Nisa 4/13-14, and the wording is his, and in Sunan Ibn Majah with the wording "مَنْ فَرَّ مِنْ مِيرَاثِ ...." Al-Wasaya Bab al-Hayf fi al-Wasiyah Hadith 2703. (This narration is weak)
The forms of change in the Shariah rulings of inheritance are:
✔ Declaring a non-heir as an heir
✔ Depriving any heir of their full or partial share
✔ Equalizing the shares of men and women, as is done in some kufr (disbelief) laws
All these are in clear contradiction to Allah's command "The share of a male is equal to that of two females".
A person who makes such a change is a disbeliever and will be in Hell forever, unless he sincerely repents before death.
The Law of Jahiliyyah and the Reform of Islam
In the era of Jahiliyyah, women and children were deprived of inheritance, and only those adult men who could ride horses and bear arms were considered entitled. Islam declared this law invalid.
Allah Almighty said:
﴿لِلرِّجالِ نَصيبٌ مِمّا تَرَكَ الوٰلِدانِ وَالأَقرَبونَ وَلِلنِّساءِ نَصيبٌ مِمّا تَرَكَ الوٰلِدانِ وَالأَقرَبونَ مِمّا قَلَّ مِنهُ أَو كَثُرَ نَصيبًا مَفروضًا ﴿٧﴾... سورة النساء
"To the male, a portion of what the parents and close relatives leave, and to the female, a portion of what the parents and close relatives leave, whether the property is small or large—a determined share."
Reference: An-Nisa:4:7
Through this verse, the Jahiliyyah law of denying inheritance to women and children was abolished.
Also, Allah Almighty said:
﴿يوصيكُمُ اللَّهُ فى أَولـٰدِكُم...﴿١١﴾... سورة النساء
"Allah commands you concerning your children: the male shall have the equal of the portion of two females."
Reference: An-Nisa: 4/11.
And He said:
﴿ وَإِن كانوا إِخوَةً رِجالًا وَنِساءً فَلِلذَّكَرِ مِثلُ حَظِّ الأُنثَيَينِ... ﴿١٧٦﴾... سورة النساء
"And if there are siblings, male and female, then the male shall have the equal of the portion of two females."
Reference: An-Nisa: 4:176.
In these verses, modern ignorant claims are also refuted, in which women are given inheritance equal to men, opposing Allah and His Messenger ﷺ and transgressing the limits set by Allah.
It should be noted that in the ancient ignorant law, women were deprived of the right of inheritance, whereas in the modern ignorant law, women are given more than their rightful share.
However, Islam has established complete justice and fairness with women, granting them their rightful share while honoring their status.
May Allah Almighty destroy the disbelievers, hypocrites, and atheists, whose intentions and plans Allah Almighty has described as follows:
﴿يُريدونَ لِيُطفِـٔوا نورَ اللَّهِ بِأَفوٰهِهِم وَاللَّهُ مُتِمُّ نورِهِ وَلَو كَرِهَ الكـٰفِرونَ ﴿٨﴾... سورة الصف
"They (the disbelievers) want to extinguish the light of Allah with their mouths, but Allah refuses except to perfect His light, even though the disbelievers dislike it."
Reference: At-Tawbah: 9/32.
This is what I have, and Allah knows best what is right
