They also disagreed about a bequest made in favor of someone who had already died. One group—the majority—hold that such a bequest lapses upon the beneficiary’s death, while another group say it does not. They likewise debated the ruling on a bequest to a killer, whether the homicide was accidental or intentional.
A famous subsidiary question in this chapter is: if the heirs, while the testator is still alive, authorize him to exceed the one-third limit, may they retract that permission after his death? One opinion allows them to revoke; a second denies them that right; and a third differentiates, saying revocation is allowed only when the heirs were dependents of the deceased. All three views are reported within the school.
The Object of the Bequest
Considering Its Kind and Its Amount
-
Its Kind
The jurists agree that a bequest designated for the emancipation of slaves is valid. They differ over a bequest of usufructs. The majority of the jurists of the various regions deem it permissible, whereas Ibn Abī Laylā, Ibn Shubruma, and the Ẓāhirīs declare a bequest of usufructs invalid. The majority reason that usufructs are, in effect, a form of property, while the second group argue that the usufruct automatically transfers to the heirs’ ownership—since the deceased possesses nothing after death, he cannot bequeath what is now in someone else’s estate. Abū ʿUmar ibn ʿAbd al-Barr adopted this latter view. -
Its Amount
The scholars unanimously agree that one who leaves heirs may not bequeath more than one-third of the estate. They differ regarding a person who leaves no heirs and about the preferred proportion: should it be the full third or less?
Everyone restricted the bequest to a third for anyone with heirs on the basis of the sound ḥadīth in which the Prophet ﷺ visited Saʿd ibn Abī Waqqāṣ. Saʿd said:
“Messenger of Allah, the illness has reached me as you see, and I am a man of wealth with only one daughter to inherit me. May I give two-thirds of my wealth in charity?”
He ﷺ replied, “No.”
Saʿd asked, “Then one-half?”
He said, “No,” and then added, “A third—and a third is a large amount. To leave your heirs wealthy is better than to leave them poor, begging from people.”
Because of this ḥadīth, the community agreed that a bequest may not exceed one-third.
They then differed over what is recommended. Some maintained that the recommended amount is less than a third, relying on the Prophet’s ﷺ statement, “and a third is a large amount,” a view held by many of the early Muslims. Qatādah said, “Abū Bakr bequeathed one-fifth, ʿUmar bequeathed one-quarter, and the one-fifth is dearer to me.”
Others held that the preferred amount is the full third, basing themselves on the report in which the Prophet ﷺ is said to have remarked, “Allah has granted you one-third of your property in the bequest as an increase in your good deeds.” This ḥadīth, however, is weak.