وَصِيَّة

وَصِيَّة

In the lexicon wasiyya comes from joining one thing to another and can also name the thing bequeathed. Technically a bequest of property is a gift made by way of kindness and attached to the time after death, whether of things or of benefits. ¹ Related terms are the commission (ايصاء), the executorship (wisaya), the gift, which is in life and without return, and alms, which is in life to one in need seeking reward. ¹² The bequest is lawful by the Qur'an, the Sunna and consensus. The Qur'an places the bequest and the debt before inheritance, and the sunna places the debt before the bequest; a report from Sa'd ibn Abi Waqqas holds a third to be much, and that leaving heirs rich is better than leaving them in need. ² A report from Mu'adh says God gives charity of a third at death as an increase in good deeds, and a report from Ibn Umar says a Muslim who has a bequest should not spend two nights without it written by him. ³ Its purpose is to gain remembrance and reward, to give to relatives who do not inherit and to help the needy, on condition that no one is harmed, that it stays within a third, and that it is not valid for an heir without the consent of the other heirs, to prevent hatred. ³⁴ Most jurists hold that a bequest of part of the property is not obligatory but recommended for one who leaves good; the obligation was abrogated for heirs by the report that there is no bequest to an heir, and recommendation remains for non-heirs. ⁴ A bequest of less than a third is preferred; the Hanbalis say a fifth is better for the rich; Ibn Abbas and others preferred a quarter. Where heirs are poor the bequest is reduced, and a poor man with needy heirs is not advised to bequeath, in the Hanafi and Hanbali views. ⁵⁶ Some early authorities, such as al-Zuhri, Masruq and Tawus, held the bequest obligatory for relatives who do not inherit, relying on the verse on bequests and the report of Ibn Umar. ⁶ The pillars of the bequest are, for the majority, four: the formula, the testator, the legatee and the thing bequeathed. For the Hanafis the pillar is offer and acceptance according to Abu Hanifa and his two companions, and offer alone according to Zufar. ⁶⁷ The formula is any word showing transfer after death. The majority accept a bequest in writing; the Shafi'is treat writing as an allusion requiring intention, and the Hanbalis require the testator's hand to be proven. A sign from one able to speak is not valid in the majority view, and the Malikis allow it. ⁷⁸ Acceptance may be by conduct, where the legatee deals with the thing as its owner, by sale, gift or lease. ⁹ If the legatee dies after the testator without accepting, the Hanafis hold the thing passes to his heirs; the Malikis, Hanbalis and a Shafi'i view require acceptance for a named person, not mere silence, and if he dies before the testator the bequest lapses. ⁹ All agree that refusal after the testator's death voids the bequest; acceptance or refusal before his death counts for nothing according to the majority. ⁹¹⁰ Acceptance and refusal need not come at once after death; the Shafi'is and Hanbalis let the heirs require the legatee to decide. ¹⁰ On retracting an acceptance there are three views: the majority forbid it; some Shafi'is and Hanbalis allow it before possession; a third allows it for measured goods before possession. ¹⁰¹¹ A partial acceptance is disputed in the Shafi'i school; Zakariyya al-Ansari prefers invalidity. ¹¹ A named legatee of full capacity accepts or refuses for himself; an unnamed group such as the poor or the mosques needs neither; a ward accepts through his guardian for his interest. ¹¹ If a named legatee dies after the testator without accepting, the Hanafis except Zufar hold the bequest valid by preference; Zufar and a Hanbali view make it the heirs' property and void it; the majority let his heirs stand in his place. ¹¹¹² A bequest may be made conditional or dated to the future: the Hanafis and Shafi'is allow it; the Malikis void it when the testator says if I die of this illness and does not die of it; the Hanbalis allow a condition expected to occur after death. ¹²¹³ A bequest is not binding; the testator may revoke all or part of it, in health or in sickness, as Umar is reported to have said that a man may change what he wills. ¹⁴ Revocation may be by word, or by conduct such as sale, gift, pledge, consumption, mixing, grinding grain, spinning cotton or building on the thing. The majority hold that denying the bequest is not a revocation. ¹⁴¹³ The testator must be sane; the Hanafis, Shafi'is and Hanbalis require puberty, while the Malikis and a Hanbali view allow a discerning minor in the matters where he is able. An insane person, the dazed and the unconscious are excluded. ¹⁵¹⁶ Freedom is required, so a slave's bequest is void; the bequest must be made freely, so one forced, joking or mistaken makes it void. ¹⁶ The majority do not require the testator to be Muslim; the Shafi'is and Hanbalis accept a non-Muslim's bequest, including an apostate's on the Shafi'i view unless he dies as an apostate, while the Malikis void an apostate's bequest during the apostasy. ¹⁷ For the Hanafis, a bequest by a non-Muslim enemy in enemy territory is valid if the thing is still there when they come under protection. ¹⁷¹⁸ The legatee must exist at the time of the bequest for the Hanafis, Shafi'is (preferred view) and Hanbalis; the Malikis and a Shafi'i and Hanbali view allow a bequest to one not yet born. ¹⁸¹⁹ The legatee must be capable of owning; a bequest to a dead person unknown to the testator is void, and the Malikis then direct it to the debts of the dead or his heirs. ¹⁹ A bequest to a foetus is valid if it is born alive within the usual period: six months from the bequest where the mother has a husband or master; four years for the Shafi'is and Hanbalis otherwise; two years for the Hanafis. ¹⁹ A bequest to one of two unnamed men is void according to Abu Hanifa, Zufar, the Malikis, Shafi'is and Hanbalis; Abu Yusuf holds it valid if they agree, and Muhammad leaves the choice to the heirs. ²⁰ A bequest to a group that cannot be counted, such as the poor, is valid; the Malikis do not require equal shares, the Shafi'is in the preferred view accept delivery to three, and the Hanbalis to one. ²⁰ Where the legatee is a group that cannot be counted, such as the tribes of Tamim and Aqil, the bequest is void according to the Hanafis and the less favoured Shafi'i view, because the legatee must be known; it is valid where they can be counted, and the meaning of counting is disputed. ²¹ A bequest to an animal itself is void; a bequest for the fodder of a named person's animal is valid and spent on its feed, and the Shafi'is and Hanbalis differ on a bequest to a particular horse or a horse held for God. ²¹²² A bequest by a Muslim to a public work, such as building or repairing a mosque, is valid because it is an act of devotion; the Malikis, Shafi'is and Hanbalis allow it to a lawful public purpose. A Muslim's bequest to build a church is forbidden by the majority as an act of disobedience. ²²²³ On bequests by non-Muslims, the Hanafis divide: what is devotion for both sides is valid; what is devotion only for Muslims is void; what is devotion only for them Abu Hanifa allows and his two companions forbid. ²³ A bequest to God alone is spent on works of piety in the Shafi'i view and that of Muhammad, and his view is the one followed by the Hanafis. ²³ A bequest for the cause of God is spent on military expedition by the Shafi'is, Hanbalis and Abu Yusuf, and Muhammad and a Hanbali view add the pilgrimage. A bequest to works of piety goes, for the Hanbalis, to all acts of devotion beginning with the raid; for the Hanafis, to anything without transfer of ownership. ²⁴ If the testator says place my third where God shows you, the Hanbalis allow it to any act of devotion; the Shafi'is prefer his relatives who do not inherit, then his close kin by milk, then his neighbours. ²⁴ A bequest is void where the legatee killed the testator: the Hanafis, Hanbalis, a view of the Shafi'is and al-Thawri require that the legatee not be the killer, relying on the saying that a killer has no bequest, which al-Daraqutni weakened. The bar is a killing that carries retaliation, blood-money or expiation, even by mistake; the Hanafis require direct killing and an heir of the testator. ²⁵ The Malikis, the preferred Shafi'i view and a Hanbali report do not require this. For the Malikis, if the testator knew the cause of the killing the bequest is valid; if he did not know, there are two views, and al-Dusuqi prefers invalidity. ²⁵²⁶ The jurists require that the legatee not be an heir at the testator's death where another heir exists, on the saying that God has given each holder of a right his right, so there is no bequest to an heir unless the heirs consent. ²⁶ If some heirs consent and others do not, the bequest is valid for the share of those who consent, according to the majority; the Malikis and a Shafi'i and Hanbali view hold it void and require a fresh acceptance. Consent must come from a competent person and, for the majority, after the testator's death. ²⁷ For the Malikis, consent given in the testator's illness binds, if the illness is dangerous and he does not recover; the test of who is an heir is the moment of death, not the moment of the bequest. ²⁷²⁸ Terms about the legatee vary in meaning: a bequest to neighbours is, for Abu Hanifa, to adjoining houses; for the two companions, to adjoining houses and others in the quarter who share the mosque; for the Malikis, to adjoining houses on six sides and those across a lane; for the Shafi'is and Hanbalis, to forty houses on each side; the Hanbalis also count those who hear the call to prayer. ²⁹ A bequest to relatives: for Abu Hanifa, the nearest kin in order of closeness among blood relatives within marriage's bar, excluding parents and children; for the two companions, all who trace descent to the furthest ancestor who was Muslim; for the Malikis, the paternal kin not heirs; for the Shafi'is, all kin however distant, except ascendants and descendants in the preferred view; for the Hanbalis, descendants of four forefathers. ²⁹³⁰ A bequest to the nearest kin: the Shafi'is include ascendants and descendants; their preferred view puts a son, however distant, before a father, and a brother before a grandfather. The Hanbalis distinguish by full and half siblings. ³⁰³¹ Bequests to in-laws, to relatives by marriage, to a household and to scholars have their own senses: for the Hanafis, in-laws are the blood relatives of one's wife and kin by marriage are the husbands of the forbidden kin; scholars, for the majority, are jurists and hadith specialists, to which the Shafi'is and Hanbalis add exegetes. ³¹³² A bequest to a non-Muslim is valid for a protected person; the Hanbalis require him to be named. It is valid for a protected foreigner according to the Hanafis, Shafi'is, Malikis and Hanbalis. For an enemy: the Shafi'is in the preferred view and the Hanbalis in the sound view allow it to a named enemy, while the Hanafis and Malikis in the school forbid it in enemy territory. For an apostate, the Hanafis, Malikis and a Hanbali face forbid it, and the Shafi'is and sound Hanbali view allow it to a named apostate. ³²³³ The fourth pillar, the thing bequeathed, must be property; it includes cash, goods, debts owed by others, rights measured in money, and benefits that may be sold, given or hired. Ibn Abi Layla and Ibn Shubruma forbid bequests of benefits. ³³³⁴ It must be of value in law: a bequest by or to a Muslim of wine, pork, a savage dog or a beast unfit for hunting is void; a Christian may bequeath what is of value in his belief; a trained dog or a beast fit for hunting may be bequeathed. ³⁴ Only property of value may be bequeathed; a bequest of a skin before tanning is valid for the Shafi'is, and a bequest of a gold or silver vessel is valid, since it may be used when not in use as an ornament or sold. ³⁵ Some jurists require that what is bequeathed be capable of transfer by contract after death: the Hanafis and a Shafi'i view require it; a bequest of a year's dates from palm trees is valid, and the Hanafis reject a bequest of what a flock will bear. The majority allow bequests of what does not yet exist, as in sale by salam and in tending orchards and leasing. ³⁵³⁶ A bequest of an unknown thing, such as one sheep from his flock, and of a thing one cannot deliver, such as a stray camel, is valid by agreement; a bequest of an undivided share or of a divided one is valid according to the majority. ³⁵³⁶ For the Hanafis the thing must exist at a time that depends on its kind: a named property at the bequest; a share of the whole estate, such as a third or a quarter, at the testator's death; a share of part of the estate at the bequest. ³⁶ The thing must belong to the testator: the Malikis, a Shafi'i view and the Hanbali school hold that a bequest of another's property is void even if he later owns it; the Hanafis, another Shafi'i view and a Hanbali view allow it as subject to the owner's consent. ³⁶³⁷ A bequest of a forbidden thing is void, since its purpose is to make up for good done in life. A bequest is not carried out for a sum that absorbs all the estate unless the creditors release it, according to the Hanafis and Shafi'is; the Malikis hold that a testator whose estate is wholly owed cannot bequeath. ³⁷³⁸ Where the testator has heirs, a bequest above the third is valid only with their consent, according to the majority; if they consent it stands, and if they refuse it falls. Where there are no heirs, the Hanafis let the bequest take the whole estate. ³⁸ On a bequest of a share of property: for Abu Hanifa and the Hanbali school the legatee takes a sixth where the division has fewer than six shares; other views fix it at the smallest heir's share, or a third, or a sixth. The Malikis distinguish according to whether the estate is subject to the 'awl. ³⁹⁴⁰ A bequest of a part or portion of property is, if not explained by the testator in his life, given by the heirs as they wish after death, according to the Hanafis, Shafi'is and Hanbalis. ⁴⁰ A bequest of a sheep covers the young or old, male or female, according to the context; the Hanbalis give what the name normally covers. A bequest of an animal is interpreted by custom as a horse, mule or donkey; a bequest of a dog that the testator does not own is void. ⁴⁰⁴¹ A bequest of a drum of war is valid for one of them; a bequest of an instrument for amusement is valid if it can be used for a lawful purpose. ⁴¹ A bequest of benefits is valid according to the majority, and its value is taken from the third; if it exceeds the third it is allowed only up to the third. For the Hanafis, the benefit returns to the owner of the thing when the legatee dies. ⁴¹⁴² A bequest of benefits for a set year is counted against the third by the loss of value of the thing during the period; where the benefit is shared between the legatee and the heirs it is divided by rent, by division of the thing if divisible, or by alternation of time or place. The bequest ends when the period ends before death, when the legatee gives up his right, and, in the Hanafi view, when he dies before taking it. ⁴³⁴⁴ Where the legatee of benefits is prevented from using the thing, the Hanafis make the one who prevents him pay the value of the benefit, whether one heir or all the heirs did it, and he cannot claim another period after the set time has passed. ⁴⁵ The Malikis make whoever destroys a benefit liable for it; the Shafi'is and Hanbalis hold that any right tied to a thing passes to its replacement, so if an animal whose benefit is bequeathed is killed, its value is used to buy what stands in its place. ⁴⁵ The Shafi'is say that if a house's benefit for a year is bequeathed and the testator lets it for that year and dies just after the lease, the bequest is void; if he dies after six months, it is void for the first half and the legatee takes the rest. ⁴⁵ The upkeep of a thing whose benefit is bequeathed falls on the benefit-holder for the Hanafis, Malikis and the Hanbali school, and on the owner of the thing for the Shafi'is in the preferred view. ⁴⁶ A bequest of the rights of easement that pass by inheritance, such as the right to water, to a drainage channel and to build upwards, is valid; a bequest that amounts to dividing the estate among the heirs has its own rules. ⁴⁶ A bequest to each heir of an undivided share is void for the Shafi'is, as the heir takes that by inheritance; a bequest to each heir of a particular thing needs the heirs' consent in the preferred Shafi'i view, because the aims differ. ⁴⁷ On when the thing passes: for the Hanbali school, a Maliki view and a Shafi'i view, a named legatee owns only by accepting after death, so the increase before acceptance belongs to the heirs; for the Hanafis and the preferred Maliki view, the increase after death belongs to the legatee; the preferred Shafi'i view holds ownership suspended until he accepts or refuses. ⁴⁷ Gifts bequeathed are carried out from the third left after the costs of shrouding and burial and the debts owed to people; for the Hanafis, debts owed to God such as pilgrimage, zakat, vows and expiation come from the third alone, and for the majority from the whole estate. ⁴⁸ For the Hanafis a bequest is void if the testator becomes permanently insane, whether it lasts until death or he recovers before death; permanent insanity is a month or more for Abu Yusuf and a year for Muhammad; a faint and a temporary insanity do not void it. ⁴⁸ A bequest is void where the testator is an insane person whose insanity is permanent; a person who becomes insane but recovers and bequeaths in his lucid time is valid, according to Ibn al-Najjar; the Shafi'is hold that an insanity that comes later does not void it. ⁴⁹ The apostasy of the testator voids his bequest for the Hanafis and Malikis; the Malikis add that if he returns to Islam, a written bequest stands and an unwritten one does not. ⁴⁹ The apostasy of the legatee does not void it for the Shafi'is and some Malikis; the Malikis in the school hold it void. ⁴⁹ A bequest is not binding, so the testator may revoke it whenever he likes, following Umar's words that a man may change what he wills; al-Sha'bi, Ibn Sirin, Ibn Shubruma and al-Nakha'i allow him to change anything but manumission. ⁴⁹ Revocation is either express, as in saying I revoke my bequest, which is agreed, or by act: a sale, gift, alms or endowment of the thing, or an act on it such as slaughtering the sheep, spinning cotton or weaving thread, or any act that changes its name, such as grinding grain or making a board into a door, which the Hanafis, Shafi'is and Hanbalis count as revocation; denying the bequest is not revocation for most jurists. ⁵⁰ A bequest is void when the legatee refuses it after the testator's death, when the legatee dies before the testator, by agreement, and, for the majority, when he dies after the testator without accepting; for the Hanafis the bequest stands. ⁵¹ The killing of the testator by the legatee is disputed; a bequest is void when the thing bequeathed is specific and perishes before acceptance, or when it is shown to belong to another. ⁵¹⁵² A bequest to an heir is void unless the heirs consent, as explained earlier. ⁵² The rule is that a bequest may not exceed a third of the estate where there is an heir; if the bequests exceed the third and the heirs do not consent, the legatees share the third in proportion to their bequests. ⁵² For the Hanafis, when bequests are combined, God's rights are placed first: the obligatory acts of worship such as zakat and pilgrimage, then expiations, vows and zakat al-fitr, and voluntary acts; a bequest to people is not ranked unless by text, or unless it is manumission or a bequest of advantage. ⁵²⁵³ Where the legatees have equal claims, the third is shared equally in the Hanafi school; where one is bequeathed the whole estate and another a third, Abu Hanifa divides the third in two, while Abu Yusuf and Muhammad share it in four parts; Ibn Abidin accepts the imam's view. ⁵⁴ The Malikis rank some bequests above others when the third is too small: ransoming a captive, then the temporary manumission of a slave, then zakat, zakat al-fitr, expiation for zihar, homicide and oaths, then a vow; bequests in the same rank share. ⁵⁴ Where the bequests overflow the third and the heirs do not consent, the legatees share the third as creditors share a bankrupt's estate, and the Malikis give worked examples with a half, a third and a quarter. ⁵⁵⁵⁶ The Malikis include in such sharing the bequest to an unknown person together with a named one, giving the unknown a third in the calculation; Sahnun treats a bequest without a time limit as a third of the estate. ⁵⁶ For the Shafi'is, death-related gifts are apportioned from the third by value or amount, with no priority by sequence; manumission among them is apportioned by value, and a view gives it priority. ⁵⁷ For the Hanbalis the third is shared among the legatees in proportion to their bequests, and a report from Ahmad gives manumission first. ⁵⁷⁵⁸ Writing a bequest is recommended: begin with the basmala, praise, the testimony of faith, then call witnesses; the Companions are reported to write the basmala at the head of their wills. ⁵⁸⁵⁹ Proof of a bequest is by testimony and writing: the Hanafis and Shafi'is accept writing read to witnesses or acknowledged by the testator, and not bare handwriting; the Malikis accept the testator's hand with witnesses; the Hanbalis accept known handwriting proved by the heirs or evidence. ⁵⁹⁶⁰ When the estate is partly present and partly absent or in debts, the Hanafis and Hanbalis carry out the bequest from the present money up to the third; the Shafi'is hold the rest of a named thing in suspense until what is absent comes. ⁶¹⁶² Bequests may be by shares, by portions or both; one who bequeaths the equal of an heir's share gets, for most jurists, that share added to the case; the Malikis divide differently when the heirs consent, the Shafi'is and Hanbalis give the least heir's share where heirs differ. ⁶²⁶³ A bequest of the equal of one of the testator's sons is valid according to the Hanafis; if the son is not an heir, the majority give the legatee nothing, and the Malikis give the son's share if the testator said as if he were an heir. ⁶⁴⁶⁵ A bequest of a known fraction up to a third is computed by taking the fraction from the common base of the shares; if the remainder does not divide among the heirs, the heirs' base is multiplied by the base of the bequest or by a common factor, as the Malikis, Shafi'is and Hanbalis compute it, with three sons and a third as the example. ⁶⁶⁶⁷ For two or more fractions within the third, the bases are multiplied together to produce the base of both shares; the Malikis give an example with three sons and a sixth and a seventh, and the Shafi'is an example with two parents, an eighth and a fifth; the Hanbalis reduce the fractions to one common base. ⁶⁸⁶⁹ A bequest above the third that does not exhaust the estate needs the heirs' consent; if they consent the estate is divided by the shares, as in a half, a third and a quarter, where the base is twelve and the sum rises by one, which is agreed. ⁶⁹⁷⁰

When the heirs reject the excess over the third, the jurists differ on how the third is divided among the legatees. The Malikis, Shafi'is, Hanbalis, Abu Yusuf and Muhammad hold that the third is divided by the legatees' shares as though the heirs had consented, with two-thirds going to the heirs, and that it makes no difference whether a legacy exceeded the third. Abu Hanifa, Abu Thawr and Ibn al-Mundhir hold that the excess is void without consent, so a legatee of the excess counts only for the third, because a bequest of the excess was not valid and the preference carried inside it falls with it. ⁷⁰⁷¹ Examples: a quarter and a half, rejected by the heirs, give three parts to the majority (two to the half-legatee, one to the quarter-legatee) and seven to Abu Hanifa (four and three). ⁷⁰⁷¹ A third, a half and a quarter, rejected, give thirteen parts to the majority and eleven to Abu Hanifa. ⁷¹

When the bequests exhaust the estate and the heirs consent, they behave like the fixed shares of 'awl, and each legatee takes a fixed part as if prescribed by God for an heir. ⁷¹ If the heirs reject the excess, the majority divide the third among the legatees in proportion to their shares, while Abu Hanifa, Abu Thawr and Ibn al-Mundhir do not count a legatee above the third without consent. ⁷¹ One example: all to Zayd and a third to Amr. With consent the division rises to four parts (three to Zayd, one to Amr); without consent the third is divided on four, and the base of the bequest is twelve by the majority view. ⁷¹ The Hanafi figures for the case where the two sons do not consent (p.17343) are garbled in the scan, so they are not given here; the reading is doubtful and flagged.

The third case is the combination of bequests of parts with bequests of shares. It has several forms: a bequest equal to an heir's share together with a fraction of the whole estate, a fraction of what remains after a share, and a share bequest with a part of the estate excepted. ⁷²⁷³ In the Hanafi example with two sons, one legatee gets a third and another an amount equal to one son's share; with both sons consenting the account runs from nine, so the third-legatee takes three and the rest is divided among the two sons and the share-legatee in thirds, giving each son two and the share-legatee two. ⁷² If only one son consents, the account grows to a base of eighteen. ⁷²⁷⁴ The Shafi'is treat the share-legatee as one of the heirs when the bequest does not exceed the third; the Hanbalis have two views, the preferred one giving the share-legatee a third of the estate on consent, and the other giving him what a son receives. ⁷⁴⁷³

For a bequest of a part of what remains after a share, the Hanafi example of five sons gives a base of fifty-one: eight to the share-legatee, three to the legatee of a third of what remains, and eight to each son. ⁷³ The Maliki, Shafi'i and Hanbali examples on the next pages use unknown quantities and the method of correction; the figures are in the book's worked lines and are summarised here, not reproduced. ⁷³⁷⁵⁷⁶

A share bequest with an exception of part of the estate: the Hanbali example of one son and a bequest equal to his share except half the estate gives the legatee a quarter. ⁷⁶ For three sons and a bequest equal to one share except a seventh of the estate, the arithmetic is run on a base of sixty-three. ⁷⁷

The exception that accompanies shares and fractions comes in four kinds. First, a part of what remains after the share (five sons, base fifty-seven). ⁷⁷ Second, a part of what remains after the bequest (three sons, with the base of thirteen). ⁷⁸ Third, a part of what remains of a part after the bequest. ⁷⁸ Fourth, a part of what remains of a part of the estate after the share, with a base of thirty-nine for three sons. ⁷⁸

When the testator states an exception without saying whether it is after the share or after the bequest, there are two views. The first, which Ibn Qudama attributes to most jurists, reads it as after the share, because the share is what was named. The second reads it as after the bequest, which yields the larger exception and so the smaller legacy; the legacies are read on the surest minimum. This second view is that of most Shafi'is and is attributed by Ibn Qudama to Muhammad al-Shaybani and to the Basran jurists. ⁷⁸⁷⁹