- The Book of Bequests
A bequest (waṣiyyah) is not obligatory; it is recommended. One may not bequeath to an heir unless the other heirs ratify it, nor may one bequeath more than one-third of the estate, nor in favour of a murderer.
A Muslim may bequeath to a non-Muslim and a non-Muslim may bequeath to a Muslim.
A bequest is only accepted after the testator’s death; if the legatee accepts or rejects it while the testator is still alive, such acceptance or rejection is invalid.
It is preferable for a person to bequeath less than one-third.
If the testator appoints an executor and that executor accepts the appointment in the testator’s presence, then later renounces it in his absence, the renunciation is ineffective; but if he renounces it in the testator’s presence, it is effective.
Ownership of the bequeathed property is transferred upon acceptance, except in one case: if the testator dies and the legatee then dies before accepting, the property passes into the estate of the legatee’s heirs.
If a slave, a non-Muslim, or an openly sinful person is appointed executor, the judge removes him from office and appoints someone else. If the testator appoints his own slave as executor while adult heirs are alive, the appointment is void. Should he appoint a person incapable of carrying out the duties, the judge adds another to assist him.
When two executors are appointed, neither may act independently—according to Abū Ḥanīfah and Muḥammad—except in the following matters: purchasing the shroud and arranging the funeral, providing food and clothing for minor heirs, returning a specific deposit, paying a debt, executing a specific bequest, emancipating a specifically designated slave, and conducting litigation over the deceased’s rights.
If one-third of the estate is bequeathed to one man and one-third to another, and the heirs refuse to approve the excess, the available third is divided equally between the two. If one receives a bequest of one-third and the other of one-sixth, the third is divided between them in three shares. If one is given the whole estate and the other one-third, and the heirs do not approve, then according to Abū Yūsuf and Muḥammad the third is divided into four shares, whereas Abū Ḥanīfah says it is divided equally.
Abū Ḥanīfah does not allot any portion of the excess over one-third to the legatee except in cases of muḥābah (a concessional sale), siʿāyah (a slave’s indemnity for partial manumission), and unspecified sums of silver coin.
If a person makes a bequest while his debts equal or exceed his estate, the bequest is invalid unless the creditors waive what is owed.
If someone bequeaths “the share of my son,” the bequest is void; but if he bequeaths an equal