Title:
The Implication of Narratives Ascribed to the Prophet (pbuh) Regarding Bequest…
Article:
Note: This article was basically written in reply to some
comments/criticisms that I received from a brother, on my article: “Understanding
the Law of Inheritance of the Qur’an”. It may kindly be noted that in
contrast to the general writings on this web site, this article is of a
comparatively technical nature and knowledge of the Arabic language may be
necessary to fully comprehend it.
Regarding bequest, Mr. Salim Morgan has raised two points. The first
point relates to relatives in whose favor a person cannot bequeath any part of
his wealth. While the second point relates to the allowable ratio of the total
wealth regarding which a person can bequeath.
The First Point
Stating the first point, Mr. Salim Morgan in his letter to Mr. Sultan,
writes:
“The application of the hadith “Laa wasiyyata liy
waarithin” (You cannot will anything to any heir) is that you cannot
make a wasiya to ANY of the “potential” heirs even if they
are not inheriting anything in the current situation due to the presence of
those who supercede them. This would include those mentioned in the
verse of kalaala. This is the only way which makes sense,
actually, since you must make wasiya while still alive and you do not have
knowledge of who your heirs will be at death. Can you check on this
question? I remember for certain that you can make wasiya to
persons who would never inherit from you regardless of the configuration of
survivors such as an unrelated friend or a charitable organization.
Also, I was taught that you can make wasiya to a non-Muslim relative
(even parent or child) since they too would also never inherit from you.
I’m not sure if there is a difference of opinion in that one. What you
definitely cannot do is make a wasiya to someone who will inherit
from you in order to distort the portions which Allah has assigned. I
believe this includes a portion of “zero”, i.e., that you cannot
make wasiya to an uncle for example who is not inheriting anything
because of the presence of other heirs.”
I am afraid, I do not agree with Mr. Salim on this point. If we look
closely at the referred narrative, it becomes quite obvious that the word “waarith”
in the narrative is used for “heirs” and not “potential
heirs”. The referred narrative reads as:
Indeed, God has given each person with a right [in the
inheritance of a deceased] his rightful share [in that inheritance].
Therefore, there should be no bequest in favor of any heir.
Obviously, taken in the context of the complete narrative ascribed to
the Prophet (pbuh), the word “waarith” (i.e. any heir) can
only imply any one or more of the “zu haqqin”
(i.e. a person with a right [in the inheritance of a deceased]), whose
share has been prescribed and given by the Qur’an. And according to the Qur’an,
in the presence of offspring, a person’s brothers and sisters are not among the
“zu haqqin“. Thus, they cannot, by any
means, be included in the implication of the word “waarithin”
(as used in the words “Laa wasiyyata li waarithin“) in
the presence of children. Same would be the case of all such relatives [or
others] whose share has not been prescribed by the Qur’an under the particular
circumstances that might prevail.
The same opinion has been ascribed by Shaukaani
to the Muslim jurists. In his book “Nayel al-Autaar”
while commenting on the referred narrative ascribed to the Prophet (pbuh) he
writes:
There is consensus on considering the person in whose
favor another person has bequeathed, a ‘waarith‘ [or otherwise] on
the particular day when the person making the bequest dies. Thus, if a son is
born to a person who, while he had no offspring, had bequeathed in favor of
his [at that time] ‘heir’ brother, then the bequest in favor of the referred
brother shall be considered correct [because at the time of the death of the
person making the bequest, he is no longer a ‘waarith‘]. On the other
hand, if a person who has a son, bequeathes in favor of his brother but the
son dies during the life of the person making the bequest, then the bequest in
favor of the brother shall be considered a bequest in favor of a ‘waarith’
[and thus, disallowed]
Mr. Salim writes that “since you must make wasiyyah while still
alive, and you do not have knowledge of who your heirs will be at death”,
therefore, wasiyyah should not even be made in favor of potential heirs. As an
answer to this question, I would like to ask Mr. Salim a question: In case a
person bequeaths [as Mr. Salim has stated] in favor of an unrelated friend or a
charitable organization but before the death of the person making the bequest,
the unrelated friend dies or the charitable organization is dissolved, what
shall then be done to the bequest? I am sure Mr. Salim would say that in such a
case, the person making the bequest [because he is still alive], would either
alter his bequest [a bequest or wasiyya is not an irrevocable document]
or because of the death or the dissolution of the beneficiary, the bequest may
become redundant. By the same token, In case a person, who has children,
bequeaths in favor of any one or more of his brothers, but before his death, all
his children die, the person shall then alter his bequest. In case the person
does not get a chance to alter his bequest, then in such circumstances, such
bequest shall automatically become redundant.
Thus, it is quite clear that a person may bequeath in favor of any
related or unrelated person, except those who according to the Qur’an have a
positive share [not a passive share, like a share of “zero”] in the
wealth that he has left behind.
The Second Point
Stating the second point, Mr. Salim Morgan, in his letter to Mr.
Sultan, writes:
…the will of a Muslim can only involve AT MOST one third of
his/her property. The rest MUST be distributed according to the portions
assigned by Allah.
The Qur’an, in its explanation of the law of inheritance has mentioned at
least four times that the prescribed shares shall be distributed after the
execution of “any bequest” that might have been made by the deceased
or after the retirement of “any loan” that the deceased may owe. After
mentioning the shares of the deceased’s children and parents, the Qur’an, in Al-Nisaa
4: 11 says:
after carrying out any will [of the deceased] or
payment of any loan owed by him/her
Then again, in Al-Nisaa 4: 12 after mentioning the share of the
deceased’s husband, the Qur’an says:
after carrying out any will that they (i.e. the wives’)
have made or payment of any loan owed by them
Again, in Al-Nisaa 4: 12, after mentioning the share of the
deceased’s wife, it says:
after carrying out any will you have made or payment of
any loan that you owe
And finally, in Al-Nisaa 4: 12 after mentioning the share of the
“Kalaalah” relative who is made an heir, the Qur’an says:
after carrying out any will that has been made or any
loan that is owed
In all these four instances, the Qur’an has used the words “wasiyyatin”
[“a will” or “any will”] as well as “Daynin”
[“a loan” or “any loan”] as indefinite nouns. The clear
implication of the use of these words as indefinite nouns is that whatever the
“wasiyyah” or whatever the amound of “dayn”
both should first of all be executed and retired respectively, and only after
this has been done would the specified shares be distributed. Just like the loan
has to be retired in full irrespective of its amount, the will has to be
executed in toto, irrespective of its ratio of the total wealth of the deceased.
Thus, restricting the right of a person to bequest to only one-third of his
wealth is clearly against the injunctions of the Qur’an.
If it had only been the Qur’an, there would have been no problem for Mr.
Salim or anyone else in accepting the above explanation. But the problem really
is that there is a narrative ascribed to the Prophet (pbuh) in which he is
interpreted to have restricted the right to bequeath to only one-third of the
total wealth. Before commenting on this narrative, let us first take a look at
it. One of the narrations reported in Bukhari is as follows:
`Aamir ibn Sa`d ibn Maalik reports on the authority
of his father that he [his father] said: The Prophet (pbuh) visited me while I
was sick with a disease which had brought me quite close to death, during the
year of the Last Hajj. I said to the Prophet (pbuh): O Messenger of
Allah, I am in a bad state [of health] and I have some wealth and my inheritor
is only a daughter. What would you recommend, should I give away two-thirds of
my wealth in charity? He said: No. I said: Should I give away half of it in
charity? He said: No. [Then I said: Should I give away one-third of it in
charity?] He said: One-third is alright O Sa`d, although that too is
quite a lot. [Then he said:] It is better that you leave your children in a
good financial position rather than leave them poor, depending on others for
help. [Remember this, O Sa`d that] you shall be rewarded for whatever
you spend to please Allah even for a morsel of food grain that you put in your
wife’s mouth.
Another one of the narrations, also reported in Bukhari, is as follows:
`Aamir ibn Sa`d reports from Sa`d ibn Abi Waqqaas
(Allah be pleased with him) that he said: The Prophet (pbuh) visited me while
I was sick, in Mecca and he didnt want to die in the land from which he had
migrated. The Prophet said: Allah have mercy on Ibn `Afraa. I said: O
Messenger of Allah, should I bequeath for the whole of my wealth? He said: No.
I said: Half of it? He said: No. I said: One-third? He said: One-third is
alright, although one-third too is quite a lot. It is better that you leave
your inheritors in a good financial position rather than leave them poor,
depending on others for help. [Remember that] that whatever you spend [to
please Allah] is a charity. Even the morsel of food grain that you raise to
your wife’s mouth.
It is on the basis of these narratives that Mr. Salim has restricted the
right to bequeath to “ONLY” one-third of a person’s total wealth.
Although, it is quite clear from the words of the Qur’an that the right of a
person to bequeath is not limited to any portion of his wealth.
Some of the very apparent facts of the event reported in these narratives
are:
-
Sa`d ibn abi Waqqaas had been sick and in quite some pain, due to
which he had almost given up hope of life;
-
In this state of mind, he told the Prophet (pbuh) that he was considering
to give away or to bequeath ALL his wealth or two-thirds of his wealth in
the way of Allah;
-
The Prophet (pbuh) in his great wisdom advised him that he should not do
so. As it is quite likely that a person may commit to do something extra
ordinary only because of some severe state of affairs. Giving away wealth in
Allah’s way is a deed that is indeed followed by great reward. But it is
quite likely that a person gives away in Allah’s way much more than he
normally would, because of a high emotional state of mind and later on may
develop a feeling of regret. Such regret would not only make his life
miserable but would also deprive him of the reward of the life hereafter;
-
Moreover, such a decision is also likely to deprive the heirs of the
person from continuing with a comfortable life. Providing for one’s children
and dependents and to leave them enough to lead a comfortable life [to the
best of one’s ability and circumstances] is a duty assigned by Allah.
Therefore whatever one spends on one’s household shall also, by Allah’s
mercy, be considered a charity and shall be followed by great reward. The
Prophet (pbuh) reminded Sa`d of these facts, so that he may change his mind
and avoid implementing his decision.
-
The Prophet (pbuh) has not mentioned any where in these narratives that
the “right of a person to bequeath is limited to one-third of his
wealth”. It is quite obvious that if the Prophet (pbuh) had intended to
restrict the right to bequeath to one-third of the total wealth, he would
have given clear directives to this effect to the whole Muslim community.
But we know that this is not the case. The only source of this opinion is
the referred narrative ascribed to the Prophet (pbuh) in which the Prophet (pbuh)
is clearly giving a valuable advice to an individual in a particular state
of mind, rather than restrict any legal right.
Keeping these facts in perspective and also keeping in mind the words of the
Qur’an, we can easily say that the Prophet (pbuh) did not legally restrict Sa`d‘s
right to bequest to one-third of his total wealth, but actually advised and
dissuaded him from taking a hasty decision in an emotional and somewhat weak
state of mind. It is indeed an advice of great wisdom and Muslims should keep it
in mind while drawing up their wills. But it does not, in anyway, alter the
unlimited right to bequeath which the owner of a property naturally possesses
and which has also been supported by the words of the Qur’an.
© Copyright June, 1999. All Rights Reserved with the Author