Testaments
الوصايا
The five schools of law[1] concur that testament is an authentic Islamic concept. It is the transfer of a physical estate or investment in a mode making it effective after death in form of donation. It is valid given that the donor is healthy and sound including the illness of death etc. The ruling in both circumstances is the same and shared by all the scholars.
Components of Valid Testaments
The testament has four pillars: The formula, the donor (of the testament), the beneficiary, and the object of the transaction.
Formula
There is no required specific formula. Therefore, a testament is valid once the wording infer to the transfer of ownership after death in form of a donation. If the Donor say: “I testify that so-and-so shall inherit such-and-such” (awsaytu lifulan bikadha), the wording infer that it is a testament that can take effect any time because there was no condition indicating the transfer after death. However, if he says: “Give!” (U`tú), “it has been declared” (Ju`ilat), or “for so-and-so this much or such-and-such” (lifulán kadha); In such a case the transfer takes effect only after death because the wording indicates that the transfer would take effect after death and the transaction cannot be finalized without the occurrence of death.
Málikís, Sháfi`ís, and Imámís say: If the ill person becomes incapable of speaking, testament can be indicated through intelligible gesture. Sha`raní has reported in his Mízán that Abu \anífah and A<mad do not consider such a transaction valid given a such condition. In the book al-fiqh `alá al-Madháhib al-Arba`ah vol. 3, chapter al-Wa#iyyah, we read that the \anbalís and \anafís said: “If an illness effects his tongue making him incapable of uttering the words, his testament is not valid unless such an illness persists for a long time, hence he becomes like the akhra# who speak only through familiar gesture, at this time, his gesture as well as his writing will be as valid as his speech.”
Al-Sha`raní has reported that Abu \anífah, Málik, and Sháfi`í are of the view indicating that: “If such an ill person writes his testament in his own hand-writing, and if it is established that it is his hand-writing, but there were no witnesses to this transaction, then the testament is invalid. In other words, if a testament showing his handwriting was to be found, but he did not indicate the witnesses, even if he recognizes it before people, still it will not be valid despite the fact that it is in fact originating from him.
A<mad says: “It is valid as long as he does not resend it.”
Researchers among the Imámí scholars say: Written testament is valid because the declared action is a proof like the declared statements. Written words are “sisters” to spoken words as for as expression of internal intentions are concerned, in fact written words are even more expressive, hence must be more valid than other proofs or conjunction.” [See al-Jawáhir, chapter on al-Wa#iyyah]
The Donor
All schools of thought concur that testament stated by the insane individual during his insanity moments and the indiscriminate (Ghayr al-Mumayyiz) boy is not valid. They disagree however regarding testament made by discriminate boy:
Málikís, \anbalís and Sháfi`í (in one of his two opinions), say: “Testament made by a boy who is ten years of age or older is valid. Because the Caliph `Umar permitted it.”
\anafís say: It is not valid unless he testifies regarding his trousseau and his burial. But it is well known that such things do not even require a testament.
Imámís say: His testament is valid if servicing righteousness and goodness, but invalid otherwise. This view is based on the argument observation that Imám al-@ádiq permitted it.[2]
\anafís say: If an adult makes a testament during his awakeness, then he becomes insane; onemust consider the following: If his insanity is grave and continues for six month, the testament is invalid, but valid otherwise. But if makes the testament while in good health, but starts hallucinating to the point where he would be considered insane, and continue in such a condition until his death, then the testament is invalid. [3]
Imámís, Málikís, and \anbalís say: The testament will not be nullified by the presence of the symptoms of insanity even if they persist until death. That is so because the later symptoms cannot nullify earlier actions.
\anafís , Sháfi`ís , and Málikís say: the testament made by the idiot is valid.
\anbalís say: His testament is valid if effecting his assets but it shall not bind his offspring. If he appoints a guardian for them for instance, his testament shall not be accepted.[4]
Imámís say: Testaments made by the idiot concerning his wealth is invalid, but it is valid concerning other objects and matters. If he appoints a guardian for his children for instance, such a testament is valid, but if he decides to give part of his wealth, then such a testament is invalid. The Imámís were alone in saying: whoever commits an action with the intent to commit suicide then makes a testament, then dies, his testament is void. But if he makes the testament, then commits a suicide, then the testament shall be valid.
Málikís and \anbalís say: Testament made by a drunken person is void.
Sháfi`ís say: Testament made by a person who is passed out is valid, but a person who voluntarily gets drunk is valid.
\anafís say: Testament made by weak, mistaking, or coerced individual is void.[5]
Imámís say: Testament made by a drunk or passed out person is void. And so is that of a weak, mistaking, or coerced person.
The beneficiary
The four Sunni schools of thought concur that a testament shall not be considered valid unless the donor allows the legal heirs to inherent.
Imámís say: testament can be made for the legal heirs as well as for non-heirs. They add that its validity shall not be dependent on permitting the heirs to inherent as long as such a testament does not exceed one third. Courts in Egypt adopted the view of the four Sunni schools, then switched to the Imámi view. In Lebanon, still hold the Sunni view which prohibits natural heirs from being beneficiaries of a testament. Few years ago, some Lebanese judges introduced a proposal permitting natural heir to benefit from a testament and they advocated such an opinion in a court notice.
All schools of thought concur that a dhimmi shall has the right to make testament benefiting an other dhimmi or a Muslim. A Muslim also shall has the right to make a testament benefiting a dhimmi in accordance with the Qur’anin verse:
God will not forbid you from those who did not fight you for religious purposes, and who did not expel you out of your homes; You shall be able to treat them fairly and justly. Indeed God loves those who act justly. For God forbid from those who fought you in matters of religion, who expelled you out of your homes, and inspired for your expulsion. Whoever, amongst you, takes them as friends shall be considered an aggressor.
[al-Mumtahinah; 8-9]
Jurists however disagreed regarding the validity of a testament made by a Muslim benefiting a Muharib [A dhimme is the one who pay Jizyah to Muslims, a harbee however is the one who does not pay Jizyah according to Imámís eventhough he does not wage war. According to the rest of the Schools of thought, one is a muharib only if he takes arms against Muslims or Qad’ al-Sabeel (al-Bidaya wa al-Nihayah by Ibn Rushd, Vol. 2, chapter al-Harb). The Second Martyr (al-Shaheed al-Thani), in his book al-Masalik, chapter on Testament: “Testament benefiting anyone who does not commit an act of religious war against us is valid be he a dhimmee or a Harbee, in accordance to God’s words: “la Yanhakum Allah ...” and in accordance to the tradition of Imám al-Sadiq “Give the will to whoever was appointed as the beneficiary even if he is a Jew or a Christian. Indeed God says: “And whoever changes it after hearing it, then the blame is on those who change it” and he did not distinguish between the Harbee and others] (warrior); Málikís, \anbalís , and most of the Sháfi`ís say: it is valid.
\anafís and most of the Imámís say: It is not valid. [al-Mugni, vol. 6, and al-Jawahir, vol.4, chapter testament.]
They concur on the validity of testament made to a fetus on the condition that he is delivered alive, because testament has the same characteristics as that of inheritance. Since they concur that the fetus inherit, then he shall own what is his by the power of a will also.
Jurists disagree concerning whether the embrio must exist or not during the making of the will as a condition for the validity of the testament.
Imámís, \anafís , \anbalís , Sháfi`ís –in the most authentic of his two views, say: That must be set as a condition. He will not benefit from the testament unless it is known that it exists during the making of the testament. This knowledge shall be ascertained by the delivery of the baby alive within a period shorter than six months counting from the date of the writing of the will and given that the mother has a husband who can impregnate her. If he gives birth in six months or after, The embrio shall not receive the will because of (the possibility of his renewal {jawazi Tajaddudihi}?). The more reliable view is that he was not conceived during the writing of the will. This opinion is based on the principle that a Non-existing shall not benefit from a will.
Málikís say: A testament benefiting an embryo that is actually existing shall be valid, and so is a one benefiting what/who will exist in the future. They went to the extent of permitting testaments benefiting Non-existing. [Among the Imámi jurists who agrees with the Málikís in this regard we mention Sheykh Ahmad Kashif al-Ghita’. He stated in Wasilat al-Najat, chapter al-Wasiyyah: “There shall be no problem is a donor initiates a Hung-ownership depending on the existence of the beneficiary; but the ownership takes place after existence, as is the case with a trust. But he limited that by the condition of `no consensus’ opposing his view.] [al-Tadhkirah by al-Hilli, al-Fiqh ala al-Madhahib al-Arba’ah, and al-‘Iddah fee Fiqh al-Hanabolah, chapter al-Wasiyyah].
If a will made for an embrio, and the mother delivers a boy and a girl???, the donation shall be divided between them equally, because testaments are considered donation not inheritance. It is similar to them being given some thing after their birth.
Jurists agree on the validity of testaments made to benefit public categories like poor people, unfortunate people, students, schools, and mosques. Abu Hanifah however took exception of the case of testament for a mosque and its alike. He argued that a mosque cannot be owned. A companion of Abu Hanifah, Mohammed Ibn al-Hasan, says: It is valid, and the donation shall be spent on the affairs of the mosque. This was the way of Muslims in the East as well as in West, now and before. [The meaning of ownership depends on associate: If a human being is to benefit from the transfer of ownership, then the meaning would be full authority to do whatever he wishes with the donation. If it is a mosque, ownership will be restricted to whatever action or transaction benefiting the mosque. Hence it is meaningless to say: A mosque and its alike has a physical identify that can own or be owned.]
Jurists disagree whether acceptance is a condition or is it enough not to reject the donation if the beneficiary is a person;
Imámís and \anafís say: It is sufficient that the beneficiary does not reject the offer for the testament to be valid. Thus if the beneficiary keeps quit and does not refuse the donation, then he will own it after the demise of the donor.
Imámís say: If he accepted during lifetime of the donor, he can still refuse it after his death. Silence, and not rejecting the offer is not enough. [al-Tadhkirah, by al-Hilli, and al-Fiqh ala al-Madhahib al-Arba’ah.]
The four Sunni schools of thought jurists say: If the beneficiary dies before the death of the donor, the testament shall be considered void, because a testament is a form of donation to a receiver who is dead hence it is void. [al-Mughnee, vol. 6, chapter al-Wasiyyah]
Imámís say: If the beneficiary dies before the death of the donor, and if the donor does not retrieve his offer, the heirs of the beneficiary shall take his place and play his role in refusing or accepting the donation. In case they accept, the donation shall be considered theirs and they shall divide it amongst them the same way the divide inheritance. They are not obliged to pay off the debt of the original beneficiary, nor are they obliged to spend it on the things he willed before his death. They justify this by arguing that the acceptance is the right of donor which is transferred to his heirs, the same way the right to refuse. They used a tradition from Ahl al-Bait.[Imámís set forth as a necessity that if beneficiary refuses the will during lifetime of the donor, and he dies after the rejection, then the donor does, the heirs will have the right to accept in this case and the rejection or acceptance during lifetime of the donor is of no consequence. Some of their scholars adopt this principle of the right of the heirs in such a case.]
Malik, and Sháfi`í--in one of his two opinion say: Testament benefiting a killer is valid regardless of the killing to be erroneous or premeditated one.
\anafís say: It is valid if permitted by the heirs, and void with their permission.
\anbalís say: It is valid if made after the wound that causes death, but invalid if the killing takes place after the making of the will.[al-Ahwal al-Shakhsiyyah, chapter al-Wasiyyah, by Abu Zuhrah.]
Imámís say: Testament benefiting the killer and others is valid because the proofs permitting testament are general: “After a will he makes or a debt” Such proof include the killer and others, and to restrict it one needs another proof.
The Donation
Jurists from all the schools of thought agree that the thing to be donated must be fit to be owned like money, houses, and benefits stemming from these two. Testament effecting things that cannot be owned customarily like insects, or religiously like wine if the donor is Muslim. This is so because ownership is the end result of a will without which a testament will be useless.
Jurists also agree that testament decreeing that a beneficiary shall receive the fruits of a garden for one particular year, or permanently is valid.
Imámís go to the extent of permitting what they did not even permit in Trade and other transactions. For instance, they permit a testament to donate non-existent that might exist, or that which the donor cannot actually give like a bird in the sky, or a stray animal. They also such a will to donate an indefinite like donating an article of clothe, or an animal. They decreed that a donor can use indefinites as much as he wants as to say: “give so-and-so something, little, a lot, a part, a portion, a share etc. [In al-Sharai’, al-Masalik, and al-Jawahir, it is stated that if a donor uses such indefinite terms not determined by law, for explanation one would refer to the heir. For example if the will states: give him a share of money, a portion of money, little money, or a lot of money and other expression without a definite value in language, custom, and law; then it is up to the heir to give what can actually support someone.] Such formulation is not accepted in Trade but is accepted in testament. The author of al-Jawahir says: “May be this is due to the generality of the legal proof of testament, or because of its nature as a transferable right... But may be the boundary of the testament is everything but the exceptions.” That is what has been eliminated by legal proof like wine, pork, the Qisas rights, the Qadhf rights, etc. Some of them say: selling elephants is not permitted, but it is valid to offer an elephant through a will!
Sheykh Mohammed Abu Zuhrah says in his book al-Ahwal al-Shakhsiyyah, chapter al-Wasiyyah: “Jurists took great liberty in determining the nature of the donation, and permitted in testament what they did not permit in other transactions, like their permission to donate an indefinite thing. For instance, if one makes a testament in the effect of giving a share, a group, a thing, or little etc., the testament shall be considered valid... And it is up to the heirs to give any amount they want that can be inferred by the expression used in the will”.
This view is in agreement with the opinion of the Imámís; thus this issue is a case of consensus.
The Value of the Donation
Testament, as donation, shall not exceed one third --considering the existence of the heir—regardless of it being made while the donor is ill or not. Any thing above one third will need the approval of the heirs by consensus. If all of them permit such a testament, then it is valid, if not then it shall be void. If some of the heirs permit while others refuse, then it shall be taken in a way such that whatever is more than one third would only effect the share of the one who permit it. Only the permission of an heir who is adult, sane, and mature is valid.
Imámís say: once the heirs permit that, they cannot change their mind regardless of the consent being made during lifetime of the donor or after.
\anafís , Sháfi`ís , and \anbalís say: Rejection and permission shall not be considered unless after the demise of the donor. If they give their consent during his life time, then they decided to change their mind later, then it is within their rights to do so. It would not matter if their consent was made while the donor is in good health or not. [al-Mugnee]
Málikís say: If they give their consent while the donor is ill, they can resend their decision. But if they give their consent while he is healthy, the testament is valid and it shall effect their shares. They cannot resend the early decision.
Imámís, \anafís , and Málikís say: Once the consent is given by the heir concerning what is more than one third, such consent will constitute an approval of the action of the donor and an act of fulfilling that will. It shall not be considered a gift from the heir to the beneficiary from the testament. As a result, there is no need to Receipt, and the laws of testament shall not apply to the laws of Gifts.
Jurists disagree regarding the action of someone who makes a will effecting all his wealth and who does not have a natural heir. Malik has said that the testament shall not exceed one third. Abu Hanifah says: “It is valid even if effecting all the wealth. Sháfi`í and Ahmad have two opinion concerning this, Imámís also have two opinions the authentic is the one ruling its validity. [al-Bidayah wa al-Nihayah and al-Tadhkirah, chapter al-Wasiyyah by al-Hilli]
Jurists concur that distribution of inheritance and wills shall take place only after the payment clearance of all debts. The third that can be effected by wills is the one that is left over after payments of debt. They disagree however regarding the time during which they evaluate the third: Is this the third right after death, or during the distribution of the wealth?
\anafís say: The third shall be determined when dividing the wealth. Subsequently any amount above or below the initial estimate of the wealth shall effect the shares of the heirs and the beneficiaries. Some of the \anbalí and Maliki jurists agree with this opinion.
Sháfi`ís say: The third is determined right after death. [Abu Zuhrah]
Imámís say: The wealth would include whatever is left after death including atonement money due after a erroneous death (Diyah), atonement money after premeditated killing but after reconciliation with the family of the victim and agreeing on ransom. It is as if the dead person had spread a net during his life but it caught birds or fish after his death; so every thing must be included to the original wealth from which the third is to be determined. This opinion of theirs is close to that of the \anafís .
Imámís, Sháfi`ís , and \anbalís say: If the deceased owes taxes (zakat), atonement money, Islamic pilgrimage, or any other financial obligation, it shall be paid from the net some of wealth not from the third regardless of him having made a will in that effect or not. Such is the rule because those are the rights of God over him which shall be fulfilled in accordance to the prophetic tradition. If the deceased makes a will and determines its source to be the third, then his will shall be accepted for sake of kindness to the heir.
\anafís and Málikís say: If he makes a will it shall be taken from the third not the net some of the wealth, If he does not make the testament, it will be void once he dies. [al-Mughnee, al-Tadhkirah, and al-Bidayah wa al-Nihayah]
There is consensus that testaments for making up preferred (Mustahabah) religious duties shall be deducted from the third.
Multitudes of Testaments
If there are numerous testaments to the extent that the total will exceed one third of the wealth; like if Zayd is to receive one thousand, two thousands for the poor, and three thousands for the mosque; while the sum of the third is just five thousands; what should be done in such a case assuming that the heirs do not give consent for awarding more than the third? (wiratha al-za’id????)
Málikís, \anbalís , and Sháfi`ís say: The third shall be divided among them given the proportions of their wills. That is, the shortage shall be distributed respecting the proportion of each award stated by the will. [al-Mugnee]
Imámís say: In case of numerous testaments exceeding the third, and with no consent from the heirs for addition, the distribution shall be as follows: If there is contradiction in the statement, as to say: “two thirds to Zayd” then later say: “two thirds to Khalid”, in such a case the later will be accepted while the former would be considered void. If two testament one effecting an obligation, the other does not; then the testament effecting a an obligation shall take precedent. Lastly in case of equal importance of two testaments for instance, one must look at the wording of the testament: If it says: “give Jamal and Ahmad thousand while the third is just 500, then 500 shall be divided equally between them: 250 for each one. But if the wording separates the two names as to say: “give Jamal 500, and Ahmad 500”, then 500 shall be given to the first (Jamal) and the second part of the will shall be considered null, since there was nothing left for the second.
The Four Sunni schools of thought’s jurists say: If a particular thing has been willed to one person, then the same thing is willed to another; then they shall share it equally. For example if the donor says: “give the car to Zayd after I die””, then says: “give it to Khalid”; Khalid and Zayd both share it.
Imámís say: It is for the second (Khalid), because the second will is actually resending of the first one.
Imámís say: If one of each heir were to benefit from a particular donation through terms of a will, in proportion to his legal share, the testament shall be considered valid. For instance: If he is to say: “The Garden is for my son Ibrahim and the house is for his brother Hasan --on the condition that there is no expressed favoritism—the testament is valid as long as it does not take from the right of one of the legal heirs. Sháfi`ís and some of the \anbalís agree with them.
All jurists concur that if the donated thing is a known portion like the third or the quarter of the wealth, or a private thing to be owned by the beneficiary upon the demise of the donor –regardless of the existence of the donated thing or its absence—then he shall be a partner to the heirs in whatever is available. He can take his share from it then or whenever the donated thing becomes available.
If the donated thing particular characteristics; the Imámís and the \anafís say: The beneficiary shall not own this thing unless double its value is in the hands of the heirs. However, if the donor has uncollected money or debts while the donated thing exceeds in value one third of what is in the hands of the heirs; in this case they have the right to dispute the beneficiary and forbid him from taking what is more than the third of what they all have, especially if the uncollected money could be lost or impossible to collect. If some of the uncollected money becomes available, the beneficiary shall have the right to receive up to the total value of the original donation. If the money is never collected, then the difference of the willed donation shall belong to the heirs.
[1] Málik, \anafi, \anbalí, Sháfi`í, and Imámí schools of law.
[2] See al-Jawáhir and al-A<wál al-Shakhsiyyah by Abu Zuhra.
[3] al-fiqh `alá al-Madháhib al-Arba`ah. Vol. 3, chapter al-Wa#iyyah
[4] al-A<wál al-Shakhsiyyah, by Abu Zuhra; and al-Fiqh `alá al-Madháhib al-Arba`ah, Vol. 3, chapter on Testament.
[5] al-Fiqh ala al-Madháhib al-Arba`ah, Vol. 3, chapter on testament
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