Book of Bequests

The testamentary bequest (waṣiyyah) of every free, legally accountable person is valid, even if he is a non-Muslim. The same ruling holds—according to the authoritative position—for one placed under interdiction because of prodigality. It is not valid, however, from a madman, an unconscious person, or a minor, although one opinion recognises the bequest of a discerning child. Nor is a slave’s bequest effective; some jurists, though, maintain that if he is emancipated and then dies, the bequest stands.

When the bequest is directed to a public cause, the condition is that the cause not involve sin, such as building a church. When it is made to an individual, the condition is that legal ownership can in principle belong to him. Thus a bequest to a foetus is valid and takes effect if the child is born alive and its presence at the time of the bequest is proved by being born in less than six months. Should it be born six months or more later while its mother is under a matrimonial or ownership bond, it takes nothing. If she is under no such bond and the child is born after more than four years, the same ruling applies; if within four years, the child inherits according to the sounder view.

If the bequest is made to a slave who remains in bondage, it passes to his master. If the slave is freed before the testator’s death, the bequest becomes his; if freed after the testator’s death and he then accepts it, the ruling depends on the juristic question of when ownership in a bequest is actually acquired.

A bequest to an animal, whether the testator explicitly intends to vest ownership in it or leaves the wording unqualified, is void. If, however, he stipulates that the sum be spent on the animal’s fodder, the accepted view is that the bequest is valid.

A bequest earmarked for building a mosque is valid; likewise—according to the sounder opinion—the unqualified expression “for the mosque,” which is construed as intended for its construction and upkeep.

A bequest is also valid to a dhimmī (non-Muslim subject), and likewise to a ḥarbī (non-Muslim enemy) or an apostate, according to the sounder view, and to a murderer, according to the preponderant view. A bequest in favour of an heir is valid as well, on the preponderant view, provided the remaining heirs authorise it; their rejection or approval while the testator is alive is of no consequence. What determines heirship is the situation on the day of death.

A bequest granting every heir the exact proportion of his statutory share is ineffective, whereas a bequest of a specific item that equals that share is valid but—according to the sounder view—still requires the heirs’ approval.

A bequest to a foetus is valid, provided the child is born alive within a period that proves its existence at the time of the bequest. A bequest of usufruct is likewise valid, as is—on the sounder opinion—a bequest of fruit or offspring yet to appear, or of “one of his two slaves.”

It is also valid to bequeath something ritually impure from which benefit is permissible, such as a trained dog, manure, or protected wine. And if he bequeaths a dog from among his dogs,