Book of Bequests

Section One – The Pillars of Bequests

Our discussion is first divided into two broad parts:

1. The pillars (arkān) of bequests, and
2. The legal rulings that arise from them.

In what follows we shall confine ourselves to the more celebrated questions found in each part.

The Pillars

The pillars are four:

1. the testator,

2. the beneficiary,

3. the object of the bequest, and

4. the bequest as a legal act.

5. The Testator (al-mūṣī)

The jurists agree that any person who owns property with sound legal title may make a bequest. According to Mālik, the bequest of a spendthrift under guardianship (safīh) and of a discerning minor who understands devotional acts is also valid. Abū Ḥanīfah, however, rules that the bequest of a minor who has not yet reached puberty is invalid. From al-Shāfiʿī two opinions are reported. Likewise, the bequest of a non-Muslim is valid in their view so long as it is not for something prohibited.

2. The Beneficiary (al-mūṣā lahu)

All scholars concur that a bequest may not be made in favor of an heir, in light of the Prophet’s ﷺ statement:
“No bequest may be made for an heir.”

They then disagreed as to whether a bequest may be made for persons who are not relatives.
– The majority hold that it is permissible, though disliked.
– Al-Ḥasan al-Baṣrī and Ṭāwūs—followed by Isḥāq—maintain that the bequest must be redirected to the relatives.

Those who restrict it to relatives cite the outward sense of the Divine words:
“It is prescribed that a bequest be made for parents and close relatives” (Q 2:180),
arguing that the definite article in “the bequest” (al-waṣiyyah) indicates exclusivity.

The majority counter with the well-known ḥadīth of ʿImrān ibn Ḥuṣayn:
“A man emancipated six of his slaves while on his deathbed, owning no other property. The Messenger of God ﷺ drew lots among them and freed four,”
–and the slaves, of course, were not relatives.

Consensus, as stated, is that a bequest to an heir is invalid unless the other heirs ratify it. They then differed when the heirs do give their consent:
– The majority deem it valid.
– The Ẓāhirīs and al-Muzanī declare it invalid.

The root of the dispute lies in whether the prohibition is meant as an act of worship in itself or merely to safeguard the heirs’ rights.
• Whoever regards it as an act of worship says the bequest remains invalid even with the heirs’ approval.
• Whoever attributes it to the heirs’ proprietary rights allows it once they approve.

This divergence, in turn, hinges on how one understands the Prophet’s ﷺ statement, “No bequest for an heir”:
Is its rationale intelligible, or is it a ruling without an ascertainable cause?