of his heirs during the very illness from which he died, Malik’s position is reported in two ways.
At one point he said that such an acknowledgment is valid and operative unless and until a suspicion of tawlīj (clandestine bestowal) becomes evident. The presumption is validity until that suspicion is confirmed by signs of estrangement, undue bias, or enmity toward the other heirs. This applies when the heir in question inherits collaterally (kalālah). If, however, his heirs are his own sons, no suspicion attaches to anyone outside that circle. Yet should he single out one of his sons to the exclusion of the others, the standard already mentioned is applied: if he acknowledges in favor of an undutiful son rather than a dutiful one, the acknowledgment stands; but if he acknowledges to the dutiful son, it is set aside.
On another occasion Malik said that an acknowledgment made by the sick person to an heir during his fatal illness is treated as a bequest: it is not enforceable except in respect of someone concerning whom there is no suspicion, or someone who can present proof that dispels the suspicion—such as producing witnesses that he had been repeatedly demanding the amount during the declarant’s lifetime and good health for the very thing acknowledged in the illness, and the like. If such testimony is established, judgment is entered in his favor; otherwise, an acknowledgment by the sick person in favor of an heir is rejected when its authenticity cannot be ensured. The first view, in my opinion, is the more correct.
An acknowledgment made by a sick person to a non-heir, or to one regarding whom he is not suspected, is treated exactly like the acknowledgment of a healthy person. If he acknowledges a debt to his wife while ill, then recovers and claims, “My purpose in that acknowledgment was only tawlīj,” his statement is not accepted and the acknowledgment remains binding. The same rule applies to anyone who, while sick, admits a debt—whether to someone he is suspected of favoring or not—and then regains health and denies it: he is still bound by that admission. If he later dies after having recovered, the amount is taken from the total estate.
Should he acknowledge a right to an heir during his illness, and then, before he dies, a child is born to him who bars that heir from inheritance, the acknowledgment remains sound. If that child then dies and the original heir once more becomes entitled, the acknowledgment is still binding upon him, for once an acknowledgment is established it resembles a debt: it is not extinguished except by payment or release.
An acknowledgment in favor of an heir ought, therefore, to remain in suspense: judgment should be passed neither for its invalidity nor for its validity until it becomes clear whether it stands, or