the heirs in what they allege. How apt is the ruling Abū ʿUmar Ibn ʿAbd al-Barr puts forward on this issue, for he says:

“If the heirs make such a claim, they must substantiate it; if they succeed, the legatee takes from the designated item an amount equal to one-third of it and then shares the remainder with the heirs. If, however, the item’s value proves to be one-third or less, the heirs are compelled to hand it over in full.

“When everyone agrees that the specified item exceeds one-third, Mālik holds that the heirs may choose: either give him exactly what was named, or allot to him the whole of one-third of the estate—whether by giving him that very item or, according to another report from Mālik, by apportioning the third across all the property.

“Abū Ḥanīfah and al-Shāfiʿī, by contrast, maintain that he receives one-third of that article and, with respect to the rest of it, becomes a co-owner with the heirs in everything the deceased left until he has completed the full third.

“The difference goes back to this: once the deceased exceeded the limit by confining his bequest to a particular object, is it fairer to the heirs to let them choose between executing the bequest or releasing to the legatee only what the law permits the testator to dispose of, or should that excess simply be cancelled so that the right reverts to shared ownership? The latter is preferable if we hold that the excess lies in the very act of designation, for the item surpasses one-third—in other words, the designation itself ought to be set aside. To oblige the heirs either to carry through the designation or to surrender the entire third is an undue burden.

A related dispute concerns a person on whom zakāh had fallen due, who died without instructing that it be paid: is the zakāh taken from the third, or from the estate as a whole?

• Mālik says: if he left no instruction, the heirs are not required to pay it.
• Al-Shāfiʿī says: the heirs must pay it out of the principal.

If the deceased did leave instructions, then—
• according to Mālik, the heirs must pay, but it is charged to the third;
• according to al-Shāfiʿī, in both cases it is paid from the principal, for he likens it to a debt, citing the Prophet (peace and blessings be upon him): “A debt owed to Allah has the greatest right to be discharged.”

The same, in his view, applies to obligatory expiations and to the obligatory Hajj. Mālik, however, treats these as ordinary bequests that take effect only through a specific instruction to discharge them after death. All agree that if such obligations are fulfilled during life, they come out of the principal, even when one is on one’s death-bed.

Mālik seems here to suspect the testator of disadvantaging the heirs, saying: “If this were allowed, a person could postpone all his zakāh for his entire life and, when death approached, simply direct that it be paid.”

Therefore, when zakāh competes with other bequests, Mālik gives it priority over any weaker bequest, whereas Abū Ḥanīfah holds that zakāh and all other bequests share alike—that is, proportionally.

Mālik and all his companions agree that if several bequests exceed the third and are of equal standing, they share that third proportionally; but if some are weightier than others, the more important are given precedence, though they differ over the precise order of priority, as detailed in their works.

Among their well-known arithmetic problems in this chapter is the case of a man who bequeaths half of his estate to one person and two-thirds to another, and the heirs reject the surplus. Mālik and al-Shāfiʿī hold that the two beneficiaries divide the available third in fifths, whereas Abū Ḥanīfah says they divide that third equally.