Introduction<\/h2>\n\n\n\n
After the Book of Inheritance, Imam al-Nawawi (631\u2013676 AH \/ 1233\u20131277 CE) presents the Book of Bequests (Kitab al-Wasiyyah<\/em>). A wasiyyah<\/em> is a voluntary gift that takes effect after the giver’s death, and it may also be an instruction about how to manage his affairs, such as appointing a guardian for his children. The placement of this book next to the law of inheritance is natural. The law of inheritance sets what the deceased’s heirs will receive, while the law of bequests defines how much freedom a person has to direct his property beyond that fixed distribution.<\/p>\n\n\n\n The sources are clear. The Qur’an states that the shares of the heirs are determined after the payment of any bequest or debt, and the tradition records the Companion Sa’d ibn Abi Waqqas, who was ill and asked the Prophet whether he could leave two thirds, then half, of his wealth in charity. The Prophet replied that one third was permitted, and that one third is a great deal, because it is better to leave one’s heirs wealthy than to leave them in need. Another report states that there is no bequest for an heir. This article follows the main themes of the book in the general order of the Minhaj<\/em>.<\/p>\n\n\n\n The school holds that making a bequest is recommended for a person who has property, particularly for relatives who do not inherit from him and for charitable causes. It becomes obligatory if the person has debts or trusts owed to others that are not documented, or religious obligations such as unpaid zakah or pilgrimage, since the heirs may not know of them. In such cases, the bequest protects the rights of others.<\/p>\n\n\n\n The book lists the elements as the wording, the testator, the beneficiary, and the thing bequeathed. The wording is an expression such as “I bequeath a third of my wealth to so-and-so,” which may be spoken or written, if clear. The wording may be effective by implication as well, as when a person who cannot speak makes a clear sign.<\/p>\n\n\n\n The person who makes the bequest must be mature, sane, and acting by choice. A person who is under legal restriction because of poor financial judgment may make a bequest, since it does not harm him during his lifetime and takes effect only after death. The school discusses the case of a person who is dying, whose bequests are valid within the limit set by the law, and explains that the testator may revoke at any time before death.<\/p>\n\n\n\n The beneficiary may be a person or a charitable cause. If the beneficiary is a specific person, he must be capable of owning property and must exist at the time of the bequest, or at least be identifiable. The school accepts bequests to a child who is not yet born, under certain conditions, and to general causes, such as the poor, a mosque, or a school. A bequest to support something unlawful is invalid.<\/p>\n\n\n\n For a bequest to a specific person, acceptance is required, and it has effect only after the testator’s death. If the beneficiary rejects it, the property remains with the estate. For a bequest to a general cause or an unspecified group, acceptance is not required.<\/p>\n\n\n\n The most important rule is the limit on the amount. A person may bequeath up to one third of his estate, as determined after the payment of his debts and funeral costs, to anyone who is not an heir. This follows the report of Sa’d. If he bequeaths more than a third, the excess is valid only if the heirs consent after his death. Consent given during his life is not binding in the school’s relied-upon position, since the heirs have no right to the estate until he dies and may change their minds.<\/p>\n\n\n\n The rule protects the heirs from losing their share, while still giving the person a degree of freedom to benefit others and to give to charity. The school also notes that, where the heirs are poor, it is better to leave less than a third, and where there are no heirs, the person may leave more, subject to the school’s rules on the public treasury.<\/p>\n\n\n\n The rule that there is no bequest for an heir is firmly established. A person may not give an extra amount to one heir at the expense of the others, since the heirs’ shares are fixed by God. The school allows such a bequest only if the other heirs consent after the death. This prevents the testator from changing the fixed distribution. The book explains who counts as an heir, and the time at which this is determined, which is the time of death, not the time of the bequest. A person who is not an heir when the bequest is made, but who becomes one by the time of death, is treated as an heir.<\/p>\n\n\n\n Anything that can be owned, and that has lawful value, may be the subject of a bequest. This includes property, debts owed to the testator, the benefit of an item for a period, and the fruit of a tree. The thing need not be known in detail, which distinguishes bequests from sales, since the contract does not involve an exchange and the risk of dispute is less. A person may also bequeath a fixed share of his estate, such as one fifth, and the school explains how this is calculated.<\/p>\n\n\n\n Because the bequest takes effect only after death, the testator is free to revoke it at any time. Revocation may be express, such as saying “I have withdrawn my bequest,” or by conduct that shows the intention, such as selling the property or giving it to someone else. The school discusses which acts count as revocation and which do not.<\/p>\n\n\n\n A person may appoint an executor (wasi<\/em>) to carry out his bequests, pay his debts, and take care of his children. The executor must be trustworthy, mature, and capable. The appointment is a form of agency that takes effect after death. In the school’s position, the executor may decline the role during the testator’s lifetime, but once the testator has died, he may not abandon it without a valid excuse, as the interests of others depend on it. The executor holds the property as a trust, may not benefit from it without right, and is liable if he is negligent. If the testator appoints no executor, the judge supervises the estate and the guardianship of minors.<\/p>\n\n\n\n The book also treats the guardianship of children. A father or paternal grandfather may appoint a guardian over the property of his minor children, and the book states what the guardian may do.<\/p>\n\n\n\n The last part of the book discusses disputes. These include disagreements about whether a statement was a bequest or a promise, about whether the testator was sane when he made it, and about how much remains in the estate. The school applies its usual rules of evidence and oath.<\/p>\n\n\n\n The book begins with the nature and ruling of the bequest, and then sets out the pillars, the testator, and the beneficiary. It then explains the central limits, the rule of one third and the rule against a bequest for an heir, before turning to the subject of the bequest, revocation, and the executor. This order lets the student see the bequest first as a legal act, then as a power limited by the rights of the heirs, and finally as a responsibility carried out by a trusted person after death.<\/p>\n\n\n\n For al-Nawawi, the law of bequests balances two goods: a person’s freedom to do good with his property at the end of his life, and the family’s right to what the law sets aside for them. The limit of one third expresses this balance, as the Prophet’s reply to Sa’d shows. The tradition’s concern is not only legal, since it encourages the believer to leave a final act of charity and to settle his debts, so that his last transactions are honest and generous.<\/p>\n\n\n\n Note: This article summarizes the general Shafi’i position as presented in Minhaj al-Talibin. Details, including the timing of consent by heirs and the treatment of particular beneficiaries, can vary between editions and commentaries and differ among the schools. Wills are also governed by national laws, so readers who need to draft a will should consult a qualified scholar and a legal professional.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":" Part 2: Transactions (Mu\u2019amalat) – Bequests (Wasiyyah) Part of a series on the structure of Minhaj al-Talibin, the classical Shafi’i<\/p>\n","protected":false},"author":1,"featured_media":285,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"colormag_page_container_layout":"default_layout","colormag_page_sidebar_layout":"default_layout","video_url":"","footnotes":""},"categories":[7,10],"tags":[106,12,15,14,27,105],"class_list":["post-284","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-fiqh","category-part-2-transactions-muamalat","tag-bequests","tag-fiqh","tag-imam-al-nawawi","tag-minhaj-al-thalibin","tag-transactions-muamalat","tag-wasiyyah"],"_links":{"self":[{"href":"https:\/\/lslam.info\/en\/wp-json\/wp\/v2\/posts\/284","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/lslam.info\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lslam.info\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lslam.info\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lslam.info\/en\/wp-json\/wp\/v2\/comments?post=284"}],"version-history":[{"count":1,"href":"https:\/\/lslam.info\/en\/wp-json\/wp\/v2\/posts\/284\/revisions"}],"predecessor-version":[{"id":287,"href":"https:\/\/lslam.info\/en\/wp-json\/wp\/v2\/posts\/284\/revisions\/287"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/lslam.info\/en\/wp-json\/wp\/v2\/media\/285"}],"wp:attachment":[{"href":"https:\/\/lslam.info\/en\/wp-json\/wp\/v2\/media?parent=284"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lslam.info\/en\/wp-json\/wp\/v2\/categories?post=284"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lslam.info\/en\/wp-json\/wp\/v2\/tags?post=284"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}1. The ruling on making a bequest<\/h2>\n\n\n\n
2. The pillars of a bequest<\/h2>\n\n\n\n
3. The testator<\/h2>\n\n\n\n
4. The beneficiary<\/h2>\n\n\n\n
5. The limit of one third<\/h2>\n\n\n\n
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<\/figure>\n\n\n\n6. A bequest to an heir<\/h2>\n\n\n\n
7. What may be bequeathed<\/h2>\n\n\n\n
8. Revoking a bequest<\/h2>\n\n\n\n
9. The executor<\/h2>\n\n\n\n
10. Disputes<\/h2>\n\n\n\n
Why the order matters<\/h2>\n\n\n\n
Closing reflection<\/h2>\n\n\n\n