down from two-thirds to one-half, then to one-third, saying, “One-third is a great deal.” Why, then, do we not guide ordinary people—especially when their heirs are poor—to bequeath one-quarter or less? Yet, unfortunately, this is rare. Those who draft wills merely accommodate whoever comes to them to make a bequest. The writer asks, “How much do you wish to bequeath?” and the person replies, “One-third.” The writer does not tell him, “Rather, one-quarter or one-fifth.” This is mistaken.
I believe that when someone is asked to write a will for one-third, he should say, “My brother, do you want what is best?” If he says yes, then he should tell him, “What is best is one-fifth.” If he says, “I want more,” then we should move him to one-quarter and tell him, “This is preferable.” If you truly wished to draw near to Allah, you would give charity while you were healthy and avaricious, hoping to live and fearing poverty. But now, when you are about to part with your wealth, you go and deprive those to whom Allah has assigned it! This is not appropriate.
In any case, a bequest has a specific proportion that ought to be observed, whereas a gift does not. Thus, we do not say that it is recommended to give one-fifth or one-quarter as a gift.
The ninth difference: The jurists say that a bequest may validly be made for a fetus, whereas a gift may not. The reason is that a fetus does not have legal capacity to own property; if a gift is given to it, it cannot take ownership, nor may its parents acquire it on its behalf, because the fetus is not qualified to own property. In a gift, ownership must take effect immediately.
The tenth difference is that a bequest may validly be made to a mudabbar slave (a slave whose emancipation has been made contingent upon his master’s death), whereas a gift to him is not valid. For example, a man has a mudabbar slave—meaning one whose emancipation is tied to his master’s death—and he says to him, “When I die, you are free.” This is a mudabbar slave, because his emancipation comes after the end of his master’s life. Thus, it is valid for him to make a bequest to his mudabbar slave, because