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Wasiyah: Will or Legacy

Assalamu alaikum WRWB,

HADITH - 13 CLASS - Fiqh
 

TEXT:
Ibn Umar (RA) reported that the prophet SAW said "It is not for a man with possessions worth a will, that he stays for two nights, except that his wasiyah should be written down with him". (Bukhaari and Muslim)

COMMENTARY:
Wasiyah or will is one of many acceptable modes of wealth acquisition and disposal in Islam. Wasiyah is similar to gift, though with certain differences. It is executed after death of the benefactor and takes the form of gift of wealth, useful items [like mosques, estates, etc.] or even that of debt, etc. Actual receipt of willed items is a precondition for legal validity of wasiyah, like gifts, according to Imam Malik, but others like Imam Shafi'e opined that, verbal acceptance alone, may suffice. Allah (SWT) prescribed wasiyah saying in the Quran:

"It is prescribed when death approaches any of you ,if he leaves any goods, that he makes a bequest to parents and next of kins, according to reasonable usage". (2:180)

Although many scholars believe this verse has been abrogated by the more specific verses enjoining inheritance, it still enjoins wasiyah to non-inheriting relations, or according to at-Tabari for persons without heirs, and for the Ummah in general.

In the textual hadith above, the prophet SAW enjoined people to attach importance to wasiyah/will. Ibn Umar (RA) said since I heard the prophet's command I never left a night pass me without a will. The prophet (SAW) did not leave behind a material will himself, largely because he did not leave possessions behind, but many sahaba left wills behind - Umar (RA), one-fifth of his property and Abubakar (RA), a quarter. Scholars are divided on the legal status of wasiyah. Ibn Hazm basing his argument on the interpretation of the above cited verse infered, it is waajib upon a wealthy person, others feel it is necessary for non-inheriting near relations. But the four Imams opined it could be;

1.    Waajib, as where a person dies and leaves behind either people's right [like unpaid trust or promise] or, according to Ibn Hajjar,Allah's right [like unpaid zakat or hajj].

2.    Desired, as for near relations and the community.

3.    Haram, as where a legacy intentionally harms an heir or is done with a forbidden substance like alcohol.

The benefactor should be the legal owner of willed material. He should be an adult, sane, freeborn person and should have undertaken the wasiyah without compulsion. Imam Malik says the wasiyah of a youth and an imbecile are valid - this opinion is not widely accepted. Even in English law, the will of imbeciles had created controversies - the case of John Marsden's will that rocked England in the early 1800s is recounted, as published in Emmeline Garnett's recent book. The four Imams opine that the wasiyah of an unbeliever, to a believer, is valid so far it is not with forbidden items [and vice-versa]; this contrasts with inheritance.

The beneficiary should not usually be an heir as the prophet (SAW) said "No, wasiya for an heir". This prohibition has been thought to be due to either a "protection of heir's interest" or simply as a "religious obligation". Scholars that agree with the former reason allow a will to an heir, with other inheritors' permission, while scholars that agree with
the latter reason, like Ibn Hazm, therefore, do not allow wasiyah to an heir with or without other inheritors' permission. Although Hassan Al-Basri restricts will to near relations [infering from the verse above], majority of Ulama allowed it even to non relations, including ex-wives,basing their reason on the hadith of Imran Ibn Hussain, in which a sick man on his death bed ... owning only 6 slaves set free two [non-relations]by voting. Ibn Rushd says majority of scholars agree that a wasiyah cannot be made for a dead person, and death of the beneficiary preceding the benefactor has been counted among the things that vitiate a wasiyah.

The prophet SAW admonished Saad Ibn Abu Waqqas that he should only commit a maximum of one third of his wealth for wasiya - not two thirds and not one half, saying even one third is much. He went on to say it is better for one to leave behind his heirs sufficiently cared for than deprived. Additionally the prophet is reported to have said "That Allah
(SWT) has enjoined one third of your wealth as wasiyah ... as an increment upon your deeds (Da,if)". Based on this scholars advise a wasiyah with less than or equal to one third of one's property, as was the practice of the sahaba as cited above. Is the third refereed here in as at the time of writing the wasiyah or at the time of death? And is it only up to a third even if he has no heirs? Ulama have differed in either way. Wasiyah of over one third of property in the presence of heirs is allowed only with the latter's consent.

Allah (SWT) said in the Qur'an:

"[the distribution of inheritance in all cases is] after the payment of legacies and debts" (4:11)

In this regard one realizes that Islam attaches priority to beneficiaries of legacies even  over heirs. Following an individual's demise his wealth is disposed in the sequence - payment for grave shroud, then as was the prophet's practice, as reported by Ali Ibn Abi Taleb (RA), debt before legacies and finally inheritance. If the wealth is all consumed by a prior issue, then the subsequent one(s) becomes null and void. When making the wasiya the Quran advises taking two just witnesses (5:106).

Professor Abdurrahman Doi in his book,Basis of Sharia,showed his reservations to 'Wasiyah al-wajib' a concept introduced in the Magreb countries [Tunisia, etc.], where a grandfather to an orphan child [parents dead, young uncle alive] is compelled by this law to make a wasiyah for the child.

Lastly, as Ustaz Abdurrahman Isa previously wrote there is no room for inheritance will in Islam except where a person knows the share of every inheritor, and makes the will of his heirs to conform to their Qur'anic and Sunnah enjoined shares. This may have to be resorted to by those living in non-Muslim lands.
 

Allah knows best and may He forgive us our mistakes.

Maasalam.

AGH.

References
1a.    Quran [Yusuf Ali's translation], Verses 2:180/4:11/5:106.
  b.    Tafsir Quran al-Azim by Ibn Katheer Vol. 1, pg. 276-8 and pg. 596-9 and Vol. 2 pg. 153-4.
2.    Zaad ul-Muslim.Hadith 694 by Imam Muhammad Ash-Shinqeety, Vol. 2, pg. 264-6.
3.    Bidayatul Mujtahidi wa Nihayatul Muqtasidi by Ibn Rushd, Vol. 2, pg. 280-3.
4.    Fiqh us-Sunnah by Sayyid Sabiq, Vol. 3, pg. 336-344.