Chapter: The Order of Priority among Bequests when the One-Third Share is Insufficient
When a person leaves several bequests and the one-third portion of his estate cannot satisfy them all, no bequest is given preference over another—except the muddabbar (a slave designated for emancipation upon the owner’s death) that was stipulated while the owner was in sound health; this takes priority over every other bequest. Next in order comes the dowry of a woman whom he married during his final illness. Some of Mālik’s associates—among them ʿAbd al-Malik—held that such a dowry should be executed before the muddabbar set down in health, whereas the first view is that of Mālik himself.
After the muddabbar arranged in health, any bequest to free a specifically named slave is carried out. It makes no difference whether the testator pledged to liberate his own slave or someone else’s slave named in the bequest; this emancipation is executed before all other bequests—charitable donations, pilgrimage, the freeing of an unspecified slave, and everything else. The ruling is the same whether the charity is assigned to a particular recipient or left unrestricted, and whether or not the deceased had already performed hajj, according to Mālik.
If someone bequeaths both the emancipation of a specific slave and the payment of zakah, zakah takes precedence. Ibn ʿAbd al-Ḥakam objected to this, while ʿAbd al-Malik maintained that freeing the named slave should come before zakah. Zakah, however, is implemented before the expiation for a broken oath. The expiations for oaths, for ẓihār, and every expiation mentioned in the Quran are all carried out before the expiation for breaking the fast in Ramadan. All expiations and the fulfillment of vows precede discretionary bequests.
According to Ibn al-Qāsim, the voluntary emancipation of a slave during illness and a muddabbar arranged during illness hold the same rank. An unconditional, voluntary emancipation that does not specify a particular slave is treated like any other bequest, for Mālik—and the majority—regard it as equivalent to a monetary bequest.