⦗106–108⦘ “O you who believe, when death approaches one of you at the time of making a bequest, let two just men from among you bear witness, or two others not from among you if you are traveling through the land and the calamity of death befalls you. Detain them after the prayer and, if you have doubts, let them swear by Allah: ‘We will not exchange our oath for any price, even if it concerns a close relative, nor will we conceal Allah’s testimony. Were we to do so, we would indeed be among the sinners.’ But if it is discovered that they have incurred guilt, then two others shall stand in their place from among those with a rightful claim against them—the two nearest heirs—and swear by Allah: ‘Our testimony is truer than theirs, and we have not transgressed. Were we to do so, we would indeed be among the wrongdoers.’ That is more likely to ensure that they give their testimony properly, or that they fear other oaths will be taken after theirs. Fear Allah and listen. Allah does not guide the defiantly disobedient people.”

The Most High gives a statement that includes a command to have two people witness a bequest when the preliminaries and signs of death come upon a person. He should therefore ⦗247⦘ write his will and have it witnessed by two upright men whose testimony is legally admissible.

“Or two others not from among you” means people outside your religion, whether Jews, Christians, or others. This applies in a case of need and necessity when no two Muslims are available.

“If you are traveling through the land” means journeying through it, “and the calamity of death befalls you,” then have those two bear witness. The two are instructed to serve as witnesses only because their word is admissible in that situation. Their testimony is reinforced by detaining them “after the prayer” which they venerate.

“Let them swear by Allah” that they have told the truth and have neither altered nor substituted anything. This applies “if you have doubts” about their testimony. If you believe them, there is no need for such an oath.

They say, “We will not exchange it”—meaning their oaths—“for any price” by lying under oath for some worldly gain. “Even if it concerns a close relative”: they will not favor him merely because he is related to them. “Nor will we conceal Allah’s testimony”; rather, they will deliver it exactly as they heard it. “Were we to do so”—that is, were they to conceal it—“we would indeed be among the sinners.”

“But if it is discovered that they”—meaning the two witnesses—“have incurred guilt,” because circumstantial evidence has been found indicating that they lied and acted treacherously, “then two others shall stand in their place from among those with a rightful claim against them—the two nearest heirs.”

That is, two men from among the deceased’s heirs should stand, and they should be his closest heirs. “They shall swear by Allah: ‘Our testimony is truer than theirs’”; that is, the two witnesses lied, altered the truth, and acted treacherously. “And we have not transgressed. Were we to do so, we would indeed be among the wrongdoers”; that is, if we were to act unjustly, transgress, and testify falsely.

Allah, the Most High, then explains the wisdom behind that testimony, the solemn measures used to reinforce it, and its transfer to the deceased’s heirs when the witnesses’ treachery becomes apparent: “That is more likely”—that is, more apt—“to ensure that they give their testimony properly,” once it has been reinforced by all those solemn measures, “or that they fear other oaths will be taken after theirs”; that is, they will fear that their oaths may not be accepted and that the oaths will then pass to the deceased’s heirs.

“Allah does not guide the defiantly disobedient people”; that is, those whose defining trait is disobedience, for they neither desire guidance nor seek to follow the straight path.

In sum, when death approaches a person while he is traveling or in a similar situation where legally admissible witnesses are likely to be scarce, he should entrust his will to two upright Muslim witnesses.

If he can find only two disbelieving witnesses, he may entrust it to them. Because of their disbelief, however, if the heirs have doubts about them, they may require the two to swear (1) after the prayer that they neither acted treacherously nor lied and neither altered nor substituted anything. This clears them of any liability asserted against them.

If the heirs do not believe them and find circumstantial evidence indicating that the two witnesses lied, then, if the deceased’s heirs wish, two of them may stand and swear by Allah: “Our testimony is truer than that of the first two witnesses, and they indeed acted treacherously and lied.” The heirs will then be entitled to recover from them what they claim.

These noble verses were revealed concerning the well-known account of Tamīm al-Dārī and Adī ibn Baddā’, when al-Adawī entrusted them with his bequest. Allah knows best.

Several rulings may be inferred from these noble verses.

Among them is that making a will is prescribed and that a person whom death approaches should make one.

Another is that a will remains valid even after a person has reached the preliminaries and signs of death, so long as his reason remains sound.

Another is that a will must be witnessed by two upright men.

Another is that the testimony of disbelievers concerning such a will and analogous matters is admissible when necessity requires it. This is the position of Imam Ahmad. Many scholars have claimed that this ruling was abrogated, but that claim has no evidence to support it.

It may also perhaps be inferred from the ruling’s implication and rationale that the testimony of disbelievers is admissible when no other witnesses are available, even in matters other than this one. This was the position adopted by Shaykh al-Islam Ibn Taymiyyah.

Another is that a Muslim may travel with a disbeliever, provided no prohibited matter is involved.

Another is the permissibility of traveling for trade.

Another is that when the two witnesses are viewed with suspicion, although no circumstantial evidence of their treachery has appeared, the heirs may, if they wish, require them to reinforce their testimony with an oath and detain them after the prayer. The two must then swear in the manner described by Allah, the Most High.

Another is that if no accusation or doubt arises, there is no need to detain them or require a solemn oath from them.

Another is the grave importance of testimony, for the Most High attributed it to Himself. It must therefore be treated with due care and delivered with justice.

Another is that when the two witnesses are viewed with suspicion, they may be examined and separated so that their testimony can be scrutinized.

Another is that if circumstantial evidence indicating the two executors’ falsehood is found in this case, two of the deceased’s heirs may stand and swear by Allah: “Our oaths are more truthful than theirs, and they have indeed acted treacherously and lied.”

What those two heirs claim is then handed over to them. Thus, ⦗248⦘ the circumstantial evidence, together with their oaths, takes the place of formal proof.