How Should We Handle a Bequest That Conflicts with Islamic Law?

Answered by Shaykh Dr. Muhammad Fayez Awad

Question

How should we handle a bequest that conflicts with Islamic law?

Answer

In the name of Allah, the Most Gracious, the Most Merciful.

All praise is due to Allah, Lord of all worlds. Peace and blessings be upon the Messenger sent as a mercy to the worlds, our Master and Prophet, Muhammad, and his Family and Companions.

Islam places great emphasis on the transfer of wealth after the owner’s death to the heirs so that the world can be inhabited and developed with what Allah (Most High) has created for us and blessed us with. A bequest is one of the things Allah (Most High) has permitted His servants to make regarding their wealth after their death.

For a bequest to be obligatory to execute, it must fulfill certain conditions regarding the form of the bequest, the object of the bequest, and the beneficiary of the bequest. We will mention from these conditions those that are frequently questioned and those that are necessary to address.

Conditions for the Object of the Bequest:

The object of the bequest must meet certain conditions for the bequest to be valid. If these conditions are not met, the bequest is considered void. These conditions are:

• The object of the bequest must be something permissible to benefit from. A bequest for something impermissible to benefit from, such as a musical instrument or gambling device, is invalid.
• The object of the bequest must be transferable. Therefore, a bequest for retribution (qisas) or the right of pre-emption (shuf‘a) is invalid because these cannot be transferred, as the one entitled to them cannot transfer them.

Limits of the Bequest

a) It is recommended (mandub) for the person making the bequest not to exceed one-third of their wealth, in accordance with the hadith of Sa‘d Ibn Abi Waqqas (Allah be pleased with him), who said:

The Messenger of Allah (Allah bless him and give him peace) came to visit me during the Farewell Pilgrimage while I was gravely ill. I said: “I have reached a serious condition, and I am wealthy, with no one to inherit from me except a daughter. Should I give two-thirds of my wealth to charity?” He said: “No.” I said: “Half?” He said: “No.” I said: “A third?” He said: “A third is much. It is better to leave your heirs wealthy than to leave them dependent and asking from others.” [Bukhari; Muslim]

However, what if a person makes a bequest for more than one-third of their wealth? What is the ruling on such a bequest?

The Shafi‘i scholars said: A bequest for more than one-third of one’s wealth is disliked (makruh) according to Islamic Law, but it is valid. However, the excess of over one-third will not be executed unless the heirs approve it. If they reject the excess, it is invalid by consensus, because that portion beyond one-third is their right. If they approve it, the bequest will be carried out, honoring the decision of the person making the bequest. [Shirazi, al-Muhaddhab; Shirbini, Mughni al-Muhtaj]

As for the case where a person has no heirs and makes a bequest for more than one-third, the excess beyond one-third is void because it is the right of the Muslim community, and there is no one to approve it.

b) The wealth is considered at the time of the testator’s death, not at the time of the bequest, because a bequest transfers ownership after death.

So, if someone bequeaths one thousand while their wealth at the time of the bequest was three thousand, but only two thousand remains at the time of death, the bequest applies to one-third of the two thousand, and the remainder depends on the approval of the heirs. If they approve it, it is executed; if they reject it, it is void.

c) One-third of the wealth is considered after paying off the debts owed by the deceased, whether these debts are linked to their wealth or personal liability. So, if someone bequeaths one-third of their wealth, the bequest is only carried out based on one-third of what remains after settling the debts.

Debts take precedence over a bequest by consensus. So, if the deceased’s debts consume all of their wealth, none of the bequest is executed.

Conditions for the Beneficiary of the Bequest

• The beneficiary must be someone who can own property at the time of the testator’s death. Therefore, a bequest to someone who has passed away or to an animal such as a cat or a dog is invalid, as neither can own property. [Shirbini, Mughni al-Muhtaj; Nawawi, Rawdat al-Talibin]
• The beneficiary must not be an heir, and this condition requires some details as follows:

A Bequest to an Heir

The relied-upon view in the Shafi‘i School is that a bequest to an heir is permissible, but it does not take effect for that heir unless the other heirs approve it. [Shirbini, Mughni al-Muhtaj]

This is based on the saying of the Prophet (Allah bless him and give him peace):

“Indeed, Allah has given everyone their due right, so there is no bequest for an heir.” [Tirmidhi; Darimi; Ibn Maja]

a) The acceptance or rejection of the heirs is not considered while the testator is still alive if the bequest is made to one of the heirs. This is because the heirs have no entitlement to the estate during the testator’s lifetime. Similarly, the beneficiary of the bequest has no entitlement either.

So, if any of the heirs approve the bequest to an heir during the testator’s lifetime, they may revoke their approval after the testator’s death, and if they reject it during the testator’s lifetime, they may approve it after their death. [Buhuti, Kashshaf al-Qina]

b) What matters is whether the beneficiary is an heir at the time of the testator’s death, not at the time of the bequest. For example, if someone bequeaths to their brother while having no children at the time of the bequest, but then has a child before passing away, the bequest is valid and executed because it is now evident that the beneficiary is not an heir, as the presence of a child disqualifies siblings from inheritance if the child is male.

c) If some heirs approve the bequest to the heir after the testator’s death while others reject it, each has their own ruling. The bequest is nullified in the share of those who reject it and executed in the share of those who approve it, based on their respective portions of the estate.

These are some important points that may render a bequest invalid, thereby depriving a person of its reward and merit.

May we be granted all good and righteousness, so that we may reap the benefit of His grace and kindness by His success and favor. And all praise is due to Allah, Lord of all the worlds.

[Shaykh] Dr. Muhammad Fayez Awad