[Section on the Categories of Bequests]

Section

Bequests fall into five categories: those which must be carried out; those which need not be carried out; those concerning which there is disagreement as to whether they must be carried out; and those which ought not to be carried out.

Bequests which must be carried out are of three types:

First: a bequest for an obligatory act whose performance draws one nearer to Allah and whose omission entails sin, such as paying zakat, freeing a slave in expiation for zihār (declaring one’s wife as forbidden to oneself as one’s mother), and similar obligations.

Second: a bequest for an act whose performance draws one nearer to Allah but whose omission entails no sin, such as a bequest to the needy and the like.

Third: a bequest for an act concerning which there is disagreement as to whether it draws one nearer to Allah, according to the view that it does.

As for bequests which it is not obligatory to carry out, these are of one type: bequests for prohibited acts whose performance entails sin, such as arranging ritual wailing over the deceased and the like.

Bequests concerning which there is disagreement as to whether they must be carried out are of two types:

First: a bequest for an act concerning which there is disagreement as to whether it draws one nearer to Allah, according to the view that it does not. An example is a bequest for the performance of Hajj according to Mālik’s position, may Allah have mercy on him. Mālik and most of his companions held that such a bequest must be carried out, whereas Ibn Kināna did not. This disagreement stems from the disagreement over whether all jurists exercising independent judgment are correct.

Second: a bequest for a permissible act, neither the performance nor the omission of which draws one nearer to Allah. Examples include a bequest directing the sale of a property one owns, the sale of one of one’s slaves who does not wish to be sold, or the purchase of another slave for the heirs out of one-third of the estate, and similar matters.

Consider whether their disagreement concerning someone who makes a bequest for extravagant expenditure on his shrouds and funerary perfumes falls under this same principle. It has been said that expenditure exceeding what is required for his shrouding is charged against one-third of the estate; this is Sahnūn’s position. It has also been said that the bequest is void, a position Ibn Shaʿbān reported from Mālik and Ibn al-Qāsim.