3- THE BEQUEST
THE BEQUEST
X may devote one-third or less of his financial resources to bequests, but not more than I this, one-third meaning a third of his property as it stands at the time of his death (not before or afterwards).
If there are no Muslim heirs, or if the existent Muslim heirs do not desert the whole estate, such as when the sole eligible estate division heir is a husband or wife, then the Hanafi school permits disposing of more than a third of one’s property in bequests (dis: w44), more than a third meaning everything in excess of what one’s eligible heirs deserve by estate division (irth).) (The ruling in the Shafi’i school is that such an excess may not be disposed of in bequests, but rather is given to the Muslim common fund (bayt ai-mal) if it exists)
If X’s heirs are not poor, it is recommended for X to devote a full one-third to bequests, but if not (i.e. if his heirs are not well off, as when they do not have any money at all, or have some, but not enough for their expenses, and the other two-thirds (of the estate that constitutes their obligatory shares) which they deserve is insufficient), then it is not recommended for X to devote a full one-third to bequests.
If X wills more than one-third in bequests, then his dispositions are not valid regarding the portion in excess of one-third when he has no one (in particular) to lawfully inherit the rest (who, if they existed, could give permission for the excess, as discussed below). (In cases where there are no heirs, the Muslim people have better right to X’s property, and no one may waive this right.)
Nor are X’s bequests in excess of one-third valid when he has an heir, but the heir refuses to authorize the excess, though if the heir (or group of heirs unanimously) permits it, such a bequest is valid. It is not valid for the heir to authorize the excess or refuse to do so until after X’s death.
Charitable expenditures made by X in his will (such as an endowment (waqf), gift, and so forth) are considered as part of the bequeath able one-third.
Bequests concerning obligatory expenditures are also considered from the bequeathable one-third, provided that X has stipulated that they come from it. (Though if the bequeath third does not cover these (despite X having stipulated that they come from it), then the excess is paid from the remaining two-thirds. Obligatory expenditures include such things as paying debts, making up the hajj, paying zakat (for any year that the deceased neglected to pay it), expiations, and the fulfillment of vows that would have been binding had X been well.) But if X did not stipulate (that these obligatory expenditures come from the bequeathable one-third), then they come directly from the other two-thirds.
Current charitable dispositions of property made by X during his life, such as establishing an endowment (waqf), giving a gift, or others, are considered as personal expenditures pf his own money (and he could spend it all without any objection) if made while he was in sound health. But if X makes such current dispositions under any of the following circumstances, when these are linked with his death, then the dispositions are considered as having come from the bequeathable one-third:
1. in the final illness which brought about X’s death;
2. in military combat;
3. while travelling on rough seas in a storm;
4. as a final request before being killed;
5. or (if female) X dies while giving birth, or afterwards before separation of the placenta.
If otherwise. (meaning if the current charitable disposition was not made under any of the above circumstances, or was, but the circumstance was not linked with X’s death,) then the disposition is not taken from the bequeathable one-third
(We distinguish between the above-mentioned current dispositions (such as gifts, endowments, and donations), and between bequests by noting that current dispositions are effective before X’s death, while bequests are effective after. Current dispositions are normally implemented even if X uses up all his money, while bequests-unless X’s heirs unanimously agree to allow otherwise are restricted to one-third of the estate. An exception to permitting current dispositions to amount to as much of X’s property as he wishes is when they are affected during his death illness (or other circumstance), in which case they are limited to one-third of the estate, just as bequests are.)
If one-third of the estate does not cover the cost of the (current) dispositions which X made during his (final) illness, then (if these has been given in some order) they are implemented first thing first, then second, then third, and so on.
(Thus, if during his death illness, X said to his three friends P, Q, and R, “I give P a gift of 100 dinars, Q 100 dinars, and R 100 dinars,” but it turns out that X’s total estate is only 600 dinars, then his gifts to P and Q are valid, but we take back his gift to R, which is not valid because it exceeds the 200 dinars that is a third of the 600 dinars constituting the whole estate. This is what is meant by implementing them in order.)
The bequeathable one-third of the estate is divided (proportionally (if shares vary» between all the recipients X designates when:
1. (in cases of death illness current dispositions. such as gifts) X did not state them in any particular order (such as by saying (in a situation like the above example) to P, Q, and R, “I give you each a hundred dinars,” in which case the bequeath able one-third is divided between them);
2. or (in cases where X has explicitly made bequests) the bequeathable one-third will not cover all the bequests, whether they were made separately or not.
(All of the above only holds if the heirs do not agree to permit more than one-third of the estate for bequests or current dispositions, since if they unanimously agree, it may exceed a third, even if it takes the whole estate.)
Bequests made to nonspecific individuals such as the poor are effective when X dies. (They own the property without the fact of ownership depending on their accepting it.)
When X bequeaths something to Z, a particular individual, the ownership of the article bequeathed is suspended, meaning that if Z accepts it after X’s death, even if after some time has passed, then Z has owned it from the moment X died; but if Z declines to accept it, then X’s heirs own it. If Z accepts it, but then refuses it before having taken possession of it, this cancels his ownership of it, though if he refuses after having taken possession of it, it does not cancel his ownership (as his refusal is meaningless in such a case).
It is permissible to make the implementation of a bequest subject to a condition, whether the condition is something occurring before X’s death (such as his saying, “If Z enters So-and so’s house, I bequeath to him such and such of my property,”) or after (such as his saying, “If Z enters So-and-so’s house after my death, I bequeath to him such and such of my property”).
THINGS WHICH MAY BE BEQUEATHED
It is permissible to bequeath any of the following:
1. the right to utilize something (while not bequeathing the actual thing);
2. particular things;
3. something not yet existent, such as “what this tree will bear”;
4. something not determinately known (whether it be an unknown thing (A: such as “the contents of this box”), or something unknown in amount);
5. something undeliverable;
6. something not currently owned (at the time the bequest is made, but which X owns at the time of his death);
7. or something impure (najasa) that has a lawful use, such as a (trained hunting) dog, or oil contaminated with impurity; though not something impure that is without lawful use, such as wine or pigs.
THOSE TO WHOM BEQUESTS ARE VALID
It is permissible for X to bequeath something to Z even if Z is:
1. a non-Muslim at war with Muslims (and with still better right when Z is an ordinary non-Muslim);
2. a Jewish or Christian subject of the Islamic state;
3. an apostate from Islam;
4. the person who kills X;
5. X’s heir, provided X’s other heirs permit him to receive it (though if they do not, then the bequest is not carried out);
6. or to a person yet unborn, in which case the bequest is paid to the person (i.e. guardian) who knows of the unborn’s existence at the time X makes the bequest, provided that the child is either born alive within six months of the time the bequest is made, or is born alive more than six months and less than four years after the bequest is made, during which time the mother has had no husband (from whom the pregnancy could have resulted).
CANCELLING ONE’S BEQUESTS
If X makes some article a bequest but then changes his mind, his taking it back is valid, annulling his bequest. X’s doing any of the following is also considered taking it back (and cancels the bequest):
1. X’s loss of ownership (of the bequeathed article) such as by sale or gift;
2. X’s subjecting the article to loss of ownership by putting it up as collateral, offering it for sale, or making another bequest that stipulates that it be sold;
3. or when the name of the article changes, such as wheat being ground into flour, flour made into dough, yam woven into fabric, or when X mixes a particular article with other goods.
If Z dies before X, then X’s bequest to him is invalid. If Z dies after X but before Z accepts the bequest, then Z’s heirs may accept or reject it.
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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