Note: This article was basically written in reply to some comments/criticisms that I received from a brother, on my article: "Understanding the Law of Inheritance of the Qur'an". It may kindly be noted that in contrast to the general writings on this web site, this article is of a comparatively technical nature and knowledge of the Arabic language may be necessary to fully comprehend it.
Regarding bequest, Mr. Salim Morgan has raised two points. The first point relates to relatives in whose favor a person cannot bequeath any part of his wealth. While the second point relates to the allowable ratio of the total wealth regarding which a person can bequeath.
The First Point
Stating the first point, Mr. Salim Morgan in his letter to Mr. Sultan, writes:
"The application of the hadith "Laa wasiyyata liy waarithin" (You cannot will anything to any heir) is that you cannot make a wasiya to ANY of the "potential" heirs even if they are not inheriting anything in the current situation due to the presence of those who supercede them. This would include those mentioned in the verse of kalaala. This is the only way which makes sense, actually, since you must make wasiya while still alive and you do not have knowledge of who your heirs will be at death. Can you check on this question? I remember for certain that you can make wasiya to persons who would never inherit from you regardless of the configuration of survivors such as an unrelated friend or a charitable organization. Also, I was taught that you can make wasiya to a non-Muslim relative (even parent or child) since they too would also never inherit from you. I'm not sure if there is a difference of opinion in that one. What you definitely cannot do is make a wasiya to someone who will inherit from you in order to distort the portions which Allah has assigned. I believe this includes a portion of "zero", i.e., that you cannot make wasiya to an uncle for example who is not inheriting anything because of the presence of other heirs."
I am afraid, I do not agree with Mr. Salim on this point. If we look closely at the referred narrative, it becomes quite obvious that the word "waarith" in the narrative is used for "heirs" and not "potential heirs". The referred narrative reads as:
Indeed, God has given each person with a right [in the inheritance of a deceased] his rightful share [in that inheritance]. Therefore, there should be no bequest in favor of any heir.
Obviously, taken in the context of the complete narrative ascribed to the Prophet (pbuh), the word "waarith" (i.e. any heir) can only imply any one or more of the "zu haqqin" (i.e. a person with a right [in the inheritance of a deceased]), whose share has been prescribed and given by the Qur'an. And according to the Qur'an, in the presence of offspring, a person's brothers and sisters are not among the "zu haqqin". Thus, they cannot, by any means, be included in the implication of the word "waarithin" (as used in the words "Laa wasiyyata li waarithin") in the presence of children. Same would be the case of all such relatives [or others] whose share has not been prescribed by the Qur'an under the particular circumstances that might prevail.
The same opinion has been ascribed by Shaukaani to the Muslim jurists. In his book "Nayel al-Autaar" while commenting on the referred narrative ascribed to the Prophet (pbuh) he writes:
There is consensus on considering the person in whose favor another person has bequeathed, a 'waarith' [or otherwise] on the particular day when the person making the bequest dies. Thus, if a son is born to a person who, while he had no offspring, had bequeathed in favor of his [at that time] 'heir' brother, then the bequest in favor of the referred brother shall be considered correct [because at the time of the death of the person making the bequest, he is no longer a 'waarith']. On the other hand, if a person who has a son, bequeathes in favor of his brother but the son dies during the life of the person making the bequest, then the bequest in favor of the brother shall be considered a bequest in favor of a 'waarith' [and thus, disallowed]
Mr. Salim writes that "since you must make wasiyyah while still alive, and you do not have knowledge of who your heirs will be at death", therefore, wasiyyah should not even be made in favor of potential heirs. As an answer to this question, I would like to ask Mr. Salim a question: In case a person bequeaths [as Mr. Salim has stated] in favor of an unrelated friend or a charitable organization but before the death of the person making the bequest, the unrelated friend dies or the charitable organization is dissolved, what shall then be done to the bequest? I am sure Mr. Salim would say that in such a case, the person making the bequest [because he is still alive], would either alter his bequest [a bequest or wasiyya is not an irrevocable document] or because of the death or the dissolution of the beneficiary, the bequest may become redundant. By the same token, In case a person, who has children, bequeaths in favor of any one or more of his brothers, but before his death, all his children die, the person shall then alter his bequest. In case the person does not get a chance to alter his bequest, then in such circumstances, such bequest shall automatically become redundant.
Thus, it is quite clear that a person may bequeath in favor of any related or unrelated person, except those who according to the Qur'an have a positive share [not a passive share, like a share of "zero"] in the wealth that he has left behind.
The Second Point
Stating the second point, Mr. Salim Morgan, in his letter to Mr. Sultan, writes:
...the will of a Muslim can only involve AT MOST one third of his/her property. The rest MUST be distributed according to the portions assigned by Allah.
The Qur'an, in its explanation of the law of inheritance has mentioned at least four times that the prescribed shares shall be distributed after the execution of "any bequest" that might have been made by the deceased or after the retirement of "any loan" that the deceased may owe. After mentioning the shares of the deceased's children and parents, the Qur'an, in Al-Nisaa 4: 11 says:
after carrying out any will [of the deceased] or payment of any loan owed by him/her
Then again, in Al-Nisaa 4: 12 after mentioning the share of the deceased's husband, the Qur'an says:
after carrying out any will that they (i.e. the wives') have made or payment of any loan owed by them
Again, in Al-Nisaa 4: 12, after mentioning the share of the deceased's wife, it says:
after carrying out any will you have made or payment of any loan that you owe
And finally, in Al-Nisaa 4: 12 after mentioning the share of the "Kalaalah" relative who is made an heir, the Qur'an says:
after carrying out any will that has been made or any loan that is owed
In all these four instances, the Qur'an has used the words "wasiyyatin" ["a will" or "any will"] as well as "Daynin" ["a loan" or "any loan"] as indefinite nouns. The clear implication of the use of these words as indefinite nouns is that whatever the "wasiyyah" or whatever the amound of "dayn" both should first of all be executed and retired respectively, and only after this has been done would the specified shares be distributed. Just like the loan has to be retired in full irrespective of its amount, the will has to be executed in toto, irrespective of its ratio of the total wealth of the deceased. Thus, restricting the right of a person to bequest to only one-third of his wealth is clearly against the injunctions of the Qur'an.
If it had only been the Qur'an, there would have been no problem for Mr. Salim or anyone else in accepting the above explanation. But the problem really is that there is a narrative ascribed to the Prophet (pbuh) in which he is interpreted to have restricted the right to bequeath to only one-third of the total wealth. Before commenting on this narrative, let us first take a look at it. One of the narrations reported in Bukhari is as follows:
`Aamir ibn Sa`d ibn Maalik reports on the authority of his father that he [his father] said: The Prophet (pbuh) visited me while I was sick with a disease which had brought me quite close to death, during the year of the Last Hajj. I said to the Prophet (pbuh): O Messenger of Allah, I am in a bad state [of health] and I have some wealth and my inheritor is only a daughter. What would you recommend, should I give away two-thirds of my wealth in charity? He said: No. I said: Should I give away half of it in charity? He said: No. [Then I said: Should I give away one-third of it in charity?] He said: One-third is alright O Sa`d, although that too is quite a lot. [Then he said:] It is better that you leave your children in a good financial position rather than leave them poor, depending on others for help. [Remember this, O Sa`d that] you shall be rewarded for whatever you spend to please Allah even for a morsel of food grain that you put in your wife's mouth.
Another one of the narrations, also reported in Bukhari, is as follows:
`Aamir ibn Sa`d reports from Sa`d ibn Abi Waqqaas (Allah be pleased with him) that he said: The Prophet (pbuh) visited me while I was sick, in Mecca and he didnt want to die in the land from which he had migrated. The Prophet said: Allah have mercy on Ibn `Afraa. I said: O Messenger of Allah, should I bequeath for the whole of my wealth? He said: No. I said: Half of it? He said: No. I said: One-third? He said: One-third is alright, although one-third too is quite a lot. It is better that you leave your inheritors in a good financial position rather than leave them poor, depending on others for help. [Remember that] that whatever you spend [to please Allah] is a charity. Even the morsel of food grain that you raise to your wife's mouth.
It is on the basis of these narratives that Mr. Salim has restricted the right to bequeath to "ONLY" one-third of a person's total wealth. Although, it is quite clear from the words of the Qur'an that the right of a person to bequeath is not limited to any portion of his wealth.
Some of the very apparent facts of the event reported in these narratives are:
Sa`d ibn abi Waqqaas had been sick and in quite some pain, due to which he had almost given up hope of life;
In this state of mind, he told the Prophet (pbuh) that he was considering to give away or to bequeath ALL his wealth or two-thirds of his wealth in the way of Allah;
The Prophet (pbuh) in his great wisdom advised him that he should not do so. As it is quite likely that a person may commit to do something extra ordinary only because of some severe state of affairs. Giving away wealth in Allah's way is a deed that is indeed followed by great reward. But it is quite likely that a person gives away in Allah's way much more than he normally would, because of a high emotional state of mind and later on may develop a feeling of regret. Such regret would not only make his life miserable but would also deprive him of the reward of the life hereafter;
Moreover, such a decision is also likely to deprive the heirs of the person from continuing with a comfortable life. Providing for one's children and dependents and to leave them enough to lead a comfortable life [to the best of one's ability and circumstances] is a duty assigned by Allah. Therefore whatever one spends on one's household shall also, by Allah's mercy, be considered a charity and shall be followed by great reward. The Prophet (pbuh) reminded Sa`d of these facts, so that he may change his mind and avoid implementing his decision.
The Prophet (pbuh) has not mentioned any where in these narratives that the "right of a person to bequeath is limited to one-third of his wealth". It is quite obvious that if the Prophet (pbuh) had intended to restrict the right to bequeath to one-third of the total wealth, he would have given clear directives to this effect to the whole Muslim community. But we know that this is not the case. The only source of this opinion is the referred narrative ascribed to the Prophet (pbuh) in which the Prophet (pbuh) is clearly giving a valuable advice to an individual in a particular state of mind, rather than restrict any legal right.
Keeping these facts in perspective and also keeping in mind the words of the Qur'an, we can easily say that the Prophet (pbuh) did not legally restrict Sa`d's right to bequest to one-third of his total wealth, but actually advised and dissuaded him from taking a hasty decision in an emotional and somewhat weak state of mind. It is indeed an advice of great wisdom and Muslims should keep it in mind while drawing up their wills. But it does not, in anyway, alter the unlimited right to bequeath which the owner of a property naturally possesses and which has also been supported by the words of the Qur'an.
© Copyright June, 1999. All Rights Reserved with the Author