Departing from a testator's condition when it cannot be fulfilled

A question about a bequest to furnish the marriage of an orphan bride where the heirs could find only poor brides who were not orphans, in which Dar al-Ifta al-Misriyya answered that a testator's condition is binding and may not be altered, so an orphan must be sought through the competent bodies, but if that proves impossible after real effort the money may exceptionally go to a poor bride, as the case nearest to the testator's purpose. ¹

The questioner said that a deceased sister had left money with her brother and asked him to give it after her death towards furnishing the marriage of an orphan bride, that they know only poor brides whose families are poor too, and asked about furnishing a poor bride instead of an orphan and departing from the deceased's words. ¹

Dar al-Ifta began by explaining that Islam instituted various ways of transferring property, some of which take effect after death, such as the bequest, a door of good works by which a person makes up for what he missed in life; it cited the hadith of Abu Hurayra in Ibn Majah on the deeds that continue to benefit a believer after death, and defined the bequest with al-Hattab in Mawahib al-Jalil (6/364) as a transfer of ownership taking effect after death by way of gift. ¹ It said that a bequest is in principle recommended, while a bequest concerning the duties and debts a person owes is obligatory, citing the agreed-upon hadith of Abdullah ibn Umar on keeping a written will, and quoting al-Sarakhsi in al-Mabsut (27/142) that it is a recommended, not obligatory, contract according to the majority, and al-Kasani in Bada'i' al-Sana'i' (7/330), Ibn Rushd the grandfather in al-Muqaddimat al-Mumahhidat (3/113), al-Rafi'i in al-Aziz (7/5) and Ibn Qudama in al-Mughni (6/137) that the obligation concerns debts, deposits and duties owed to God. ¹ It noted that a bequest of property is limited to a third of the estate, anything more requiring the heirs' approval, by the agreed-upon hadith of Sa'd ibn Abi Waqqas that a third is a great deal, by the scholars' consensus on the permissibility of bequeathing a third as reported by Ibn Battal in his commentary on al-Bukhari (8/147), and by article 37 of the Bequests Law 71 of 1946. ¹

Dar al-Ifta then ruled that the case asked about is a bequest, and that the jurists agree that a testator's conditions govern the execution of the bequest: the executor must adhere to them so long as they are lawful and feasible, and may not alter them, by the text of al-Baqara 181 on the sin of one who alters a bequest after hearing it, as explained by Ibn Kathir in his commentary (1/363); it quoted al-Sarakhsi in al-Mabsut (27/146) that a bequest must be carried out as the testator required so far as possible, and Ibn Rushd the grandfather in al-Bayan wa-l-Tahsil (2/238), Imam al-Haramayn in Nihayat al-Matlab (9/6), and the Masa'il of Ahmad in the recension of Salih (1/262) that bequests are carried out to the limit of what the testator stipulated. ¹ Accordingly the executor is in principle barred from spending the money on anyone other than an orphan bride, especially since the means of searching are readily available, and neither he nor the questioner may alter the testator's condition merely because they know of no orphan in their narrow circle, given the official bodies and institutions, registered charities, orphanages and social-affairs offices that keep lists of orphan girls and their needs. ¹

Dar al-Ifta explained that this rule admits exceptions that attend to the testator's purposes when all of the above proves impossible; in that case the money may be spent on furnishing a poor girl's marriage even if she is not an orphan, because a bequest is a discretionary trust in which the testator entrusts someone she trusts to carry out her wish, as it quoted from al-Mawsili in al-Ikhtiyar (5/68) that such guardianship is discretionary, from al-Sarakhsi (16/142) that the executor is the deceased's deputy after death as an agent is in life, and from al-Buhuti in Kashshaf al-Qina' (4/400) that the executor is the deceased's deputy. ¹ It said that a donor given the choice between a wealthy orphan and a poor girl whose parents are alive would most likely choose the poor girl, so poverty is a description that counts in the bequest and the aim is to help a needy girl marry, while the description 'orphan' points to likely helplessness, brokenness and acute need; giving the money to a poor bride is therefore not a move to a case foreign to the bequest but to the nearest case sharing its rationale, helplessness and poverty, and closest to the deceased's purpose. ¹

Dar al-Ifta concluded that the executor must act on what the testator stipulated so long as it is lawful and feasible and may not alter it, so he must search for an orphan bride through official bodies, registered charities, orphanages and social-affairs offices; if he does his utmost and finds only a poor bride, he may exceptionally give the money to her to help her marry, without blame or sin. ¹

Dar al-Ifta al-Misriyya published this fatwa on dar-alifta.org as no. 8989, dated 4 June 2026, in the category of bequest, among the fatwas of the Grand Mufti Nazir Muhammad Ayyad. ¹ The museum records this text as a historical document attributed to the body or scholar that issued it; it issues no ruling of its own.