1- BEQUESTS (WASIYA)
BEQUESTS (WASIYYA)
The difference between bequests (wasiyya) and estate division (irth) is that a bequest is the act of a living person disposing of his own property, even if it is to be implemented after his death, while estate division occurs after his death according to the Quranic rules of inheritance. Because a bequest is the act of a living person with his own money, it is legally valid for a Muslim to bequeath up to a third of his property to a non-Muslim and similarly valid for a non-Muslim to bequeath his property to a Muslim. Nawawi says:
“A bequest is legally valid from any legally responsible free person, even if non-Muslim” ‘ (Mughni al-muhtaj ita ma’rifa ma’ani alfaz al-Minhaj (y73), 3.39).
But it is invalid and unlawful for a non-Muslim to inherit property through estate division from a Muslim or vice versa. The determining factor in the permissibility of a Muslim and non-Muslim inheriting from each other is whether the property comes by way of a bequest (wasiyya) made by the deceased before his death, in which case it is permissible, or whether it comes by way of estate division (irth) made after the deceased’s death according to the Quranic rules of inheritance. in which case the difference between their respective religions prevents it.)
Our author only mentions bequests at this point (at the end of book k, as mentioned above) before estate division because of the fact that a person first makes bequests, then dies, and then the estate is divided. The scriptural basis for the validity of bequests, prior to the consensus of scholars, is the word of Allah Most High,
” … after any bequest which has been made, and after any debts” (Quran 4:12).)
Given persons X (al-musi), Y (al-wasiyy), and Z (al-musa lahu) (where X has made provision in his will for Z to receive a bequest (wasiyya) of a sum of money, and X appoints Y as his executor to make sure this is done).)
A bequest made by X is valid if he is legally responsible (mukallaf), even if he is a spendthrift.
The discussion is in two parts (namely section on X’s appointing Y as the executor, and section on the bequest itself).
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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