Rescinding a Testament
Jurists concur that testament is not mandatory from the part of the donor, nor from the part of the beneficiary. Hence the former has the right to reconsider his will –be it to the effect of thing (‘ayn???), a benefit, or governance. We will talk later on the latter. Resending the will can take effect by action or by words as his eating, selling or giving of the food after he had determined it to be an object of a will. It has been reported that \anafís do not consider selling the donated thing to imply revoking of the testament, rather they say that the beneficiary shall have the right to receive the price the donated thing was sold for.
Testament of Use
Jurists of all schools of thought concur that wills regarding the Uses of an object is valid. For example will in the effect of renting a house, living in a house, use of fruits of a garden, milk from cattle and things similar to this which concerns the use of things that will be available in the future; regardless if the use is limited to certain time period or left indefinite.
Jurists disagree on the manner the will of use is determined out of the third. \anafís say: Will of use shall be evaluated based on real value of the object to be used regardless of the period being fixed or indefinite. For instance, if one is to testify a house for one year or longer, the whole house shall be evaluated; if its value is equal or less than one third, then the will shall be valid. If not, then it shall be invalid and considered void (Laghw).
Sháfi`ís and \anbalís say: will of use shall be evaluated separate from the real value of the object itself. If it is within the boundary of one third, then it shall be executed. If not then only the use valued at one third is to be executed. [Abu Zuhrah]
Imámi Researchers say: If the willed use is not indefinite, it is easy to determine; because the object itself will have a value after use. If a garden is willed for use for five years, the whole garden must be evaluated first. If it is found to be of ten thousand value, it shall be evaluated a second time subtracting the use of five years; if it is found to be five thousand, then the difference is what shall be taken out of the third. If the difference is more than the third, then the beneficiary shall receive only the use of one year or more as long as it does not exceed the third. If the willed use is indefinite, then the garden will be evaluated along with the use and it will be determined the same way the limited use was determined.
If one is to ask how? How can the object be evaluated without its use? whatever does not have a benefit does not have a value...
I reply: In fact there are use benefit that has a value even if it is minimal; a garden for example benefit from its falling branches and its dry parts. If its trees are to be eliminated for some reason, the land instead will be use. A house that was not use by the beneficiary, the heir will use its stone and its land. After slaughtering the cattle, its wool, skin and meet will be also used. In any way, the object itself is never useless after the use of the willed benefit.
Actions of the Sick Person
The Sick Person
The sick person meant here is one who remains sick until his death -on the condition of the frightening illness. That is people will think that his life is in danger because of such an illness. For instance, a toothache, eye illness, or light headaches, etc. Are not considered frightening illnesses. In fact, people sick with such illness and those sick with frightening illness but recover from it and die afterwards, the ruling concerning their testament is the same as that concerning the testament of a healthy person.
Actions of the Healthy Person
There is no doubt nor disagreement among the jurists of all the schools of thought that if a healthy person is to spend his wealth in absolute and immediate manner –that is unconditional on death—his actions are valid without even qualifiers (asl). This is so regardless of the type of the actions; be it mandatory – like payments of debts- or charity (muhabat) -like gifts and trusts.
If the healthy person stipulates his action on the condition of his death, then it shall become a testament as previously said. If it is not to be taken from the initial wealth, then it shall be taken from the third. If it is a payment of debt, then it shall be taken from the original wealth according to the Imámís, Sháfi`ís , and \anbalís . \anafís and Málikís say it shall be taken from the third as previously mentioned.
The Actions of the Ill Person
Actions undertaken by the ill person –if conditioned on death—shall be considered a testament making. The ruling in its regard is the same as that concerning the actions of the healthy person because there is no difference between a will made when the testator is healthy or ill as long as the ill person is still mentally sound, and his sensors function normal.
If the actions of the ill person were to be absolute unattached to any condition like death, then one needs to determine:
* If the actions were in his own benefit; as is the case when he buys expensive clothes for himself, becomes tasteful of his food, spends on his medication and the betterment of his health, and his traveling in order to relax etc., all such actions of his are valid and no one –heir or non-heir- has the right to stop him for undertaking such actions.
* If he acts without giving incentives; as is the case in his selling or renting, or trading something out of his property for its actual value, all such actions shall take effect and modify his original wealth and the heirs cannot object because he did not deprive him of any thing.
* If he undertakes a Munjaz XXXX action that is not conditioned (Mu’allaq) on death providing an incentive; as is the case in his giving gifts, charity, paying debt, forgiving a money generating crime, selling with less than the actual value of the object, or overpaying for something and other actions that will financially harm the heir; then such actions of the ill person shall be deducted from the third of the wealth [The Jurists of the four Sunni schools of thought have agreed however that such transactions shall be deducted from the third, but the Imámís disagreed amongst themselves; the majority of the early scholars amongst them say it shall be deducted from the original gross, the majority of the later scholars amongst them said it shall be deducted from the third. Allamah Hilli, the two martyrs are among the supporters of deduction from the third. The authors of al-Jawahir and al-Sharai’ reported on the authority of Imám al-Sadiq: “For the man after his death the third of his wealth” to support their view. They also reported from Sahih Ibn Yaqteen: “For the man -after his death- one third, and one third is too much” These traditions did not distinguish between Will and Charity Work. In the tradition of Ali Ibn ‘Uqbah concerning a man who freed his slave, that only the third can be used for the purpose. If the Imám had said no during his death, his statement will be construed as a will instead.]XXXX The fact that it is taken from the third means that it shall not be executed until after the death of the testator. If he dies before being cured from the illness, and all the wills made can be deducted just from the third, then it shall be obviously valid. If the wills exceed the third, then whatever is above the third shall be void -given that the heir do not give their consent.
Difference between Will and Mujazat of the ill person
The difference between the wasiyyah and the Munjazatr of the ill person is that wills take effect after the demise of the testator, Munjazat however is not dependent on death; either permanent independence, or dependence on other matter permitted by law; as is the case of an ill person giving a ram as an offering while he is sick if he is provided with baby boy, then after his death a boy is born to him. Such action shall be included in the category of Munjazat. It has been reported in al-Mughnee on the authority of \anbalí jurisprudence and in al-Tadhkirah on the authority of the Imámi fiqh that the Munjazat of the ill person share five common things with the will and it differ in six things. As for the similarities concurring the two concepts; that shall be clear from the statements of Allamah al-Hilli -the author of al-Tadhkirah who died in the year 726 A.H.- who quoted from Ibn Qudamah -the author of al-Mughnee who died in the year 620 A.H.- whose statements are going to summarized below:
As for the five similarities shared by Will and Munjazat we mention:
Either are spent from the third, unless the heirs consent.
According to the Imámís, heirs can benefit from munjazat exactly like wills. According to the Four Sunnis, that is not valid and so is a will to the heir.
Both transactions are lest rewarded before God that charity given during health.
Munjazat compete with the will on the third.
The deduction of either shall be done the moment of death not before nor after it.
The six differences between Will and Munjazat are:
Testator can resend a will he made. A donor however cannot change his mind once the beneficiary had accepted and received it. The reason being that a will a donation based on the condition that the testator dies. Hence as long as the condition is not fulfilled, resending the decision shall be valid. A donation given during the moment of illness however is unconditional.
Munjazat must be accepted or rejected immediately and during life time of the donor. The rejection or acceptance of the will is not be required until after death.
Munjazat are conditions free. Like knowledge of the nature of the donation and absence of harm to the rights of heirs. Wills require no such conditions.
Munjazat have priority over Will in case the third is not enough for both. With the exception of the freeing of slaves, all forms of wills have priority over munjazat. This is the opinion of the Imámís, \anafís , and Sháfi`ís . [See al-Tadhkirah, chapter al-Wasiyyah]
In the case of multiple Munjazat exceeding the third, they shall be distributed in the order they were decreed (first one is executed first) according to Sháfi`ís and \anbalís . Wills exceeding the third on the other hand, shall bare the same diminution without giving consideration to the order as we have determined in the section concerning the crowded wills. Imámís give priority to the order in either case.
If the ill donor dies before the beneficiary receives the donation, the decision shall be with the heirs; they can choose to give or resend. Wills however become mandatory once the legatee accepts after death even if they are not pleased.
The sixth point was stated by the author of al-Mughnee, but the author of al-Tadhkirah did not mention it. It is better if it is left out as mentioned by Allamah al-Hilli, because the Munjazat of the ill person consist of many things including the giving of gifts, the payment of debts, the giving of incentives in buying and selling etc. Firstly, If Munjazat are not limited to giving gifts, then it should not be said: “If the ill person dies before the beneficiary receives...”. Secondly, If the ill person gives a donation then dies before the beneficiary receives the it, the gift is void according to the \anbalís , Sháfi`ís , Imámís, and \anafís because receiving it before death is a condition for its validity. That is to say, if the beneficiary receives the donation before death, the donation is complete and it shall be deducted from the third like a will. The permission of the heirs is not required as long as it does not surpass the third. Otherwise said, without receipt or after death it shall not be considered Munjazat in the first place for it to be compared to a will. After receipt however, it shall be treated a will. Based on this, it is clear that the mention of the sixth point is not appropriate.
Confirmation by an Ill Person
Jurists of the four Sunni schools of thought concur that if an ill person confirm a debt owed to someone other then the heir, then it shall be paid from the original gross wealth as if this confirmation took place while he is healthy. They disagree however in case the debt is owed to an heir. \anafís and \anbalís say that such a confirmation results in no effects on the rest of the heirs. In fact such confirmation will be considered Laghwan unless the heir provides a legal document supporting the claim of the debt.
Málikís say: The confirmation is valid if the deceased was not accused of favoritism and invalid if he was accused. If one has a daughter and son of a paternal uncle confirms a debt owed to his daughter, it shall not be accepted. But if he confirms a debt owed to the son of his uncle, it shall be accepted. Because he will not be accused of depriving his daughter and favoring her on the son of his uncle. The justification of the prohibition of confirming the debt is the accusation, hence the prohibition was dependent on the its subject. [al-Mughnee, Vol. 5, section al-Iqrar]
Imámís say: If he confirm a debt or a thing to an heir or non-heir while he is in the death illness, one needs to determine:
If there were indications that he is not telling the truth, rather incriminating him, as is the case when based on customs it is determined that the things acknowledged to be owed cannot be owned by the person benefiting from this confirmation, but the ill person wants to favor him for some reason -if the matter is determined to be as such—the confirmation shall be treated the same way a will is treated and taken from the third. If the ill person is honest about the confirmation to the point that there is no indication that he is lying -as is the case of him being known to have a business relation with the beneficiary from this confirmation- The confirmation must be fulfilled regardless of the amount.
This is in case the character of the confirmor is known. If unknown: him being honest or dishonest, and the heir declares that the MoorithXXX is not honest regarding the confirmation he made, then the beneficiary from such confirmation shall be required to provide a proof of ownership of the thing confirmed by the ill person to be his. If he does so, the confirmation shall be taken from the initial gross wealth. If that is not the case, then the heir must take the oath that he does not that the thing confirmed by the ill person to be to so-and-so, then the confirmation shall be deducted from the third.
Imámís justify this ruling by traditions narrated from ahl al-Beit like that of Abu Baseer: “If he is telling the truth, then it is valid” etc., the “if” here indicates the condition, hence the execution is pending on the honesty and truthfulness. [Supplemental marginal entries in al-Makasib by Kadhim al-Yazidee]