Wills and Testaments (Wasaayaa)
كتاب الوصايا
Chapter 1: Al-Wasaya
And the statement of the Prophet ﷺ: “One should have his Wasaya (last will and testament) written and kept ready with him.”
And the Statement of Allah جل جلاله: “It is prescribed for you, when death approaches any of you, if he leaves wealth, that he make a bequest to parents… (up to)… some unjust…” (V.2:180-182)
Allah's Messenger (ﷺ) said, "It is not permissible for any Muslim who has something to will to stay for two nights without having his last will and testament written and kept ready with him."
(The brother of the wife of Allah's Messenger (ﷺ). Juwaira bint Al-Harith) When Allah's Messenger (ﷺ) died, he did not leave any Dirham or Dinar (i.e. money), a slave or a slave woman or anything else except his white mule, his arms and a piece of land which he had given in charity .
I asked `Abdullah bin Abu `Aufa "Did the Prophet (ﷺ) make a will?" He replied, "No," I asked him, "How is it then that the making of a will has been enjoined on people, (or that they are ordered to make a will)?" He replied, "The Prophet (ﷺ) bequeathed Allah's Book (i.e. Qur'an).
In the presence of `Aisha some people mentioned that the Prophet (ﷺ) had appointed `Ali by will as his successor. `Aisha said, "When did he appoint him by will? Verily when he died he was resting against my chest (or said: in my lap) and he asked for a wash-basin and then collapsed while in that state, and I could not even perceive that he had died, so when did he appoint him by will?"
Chapter 2: To leave inheritors wealthy than begging others
The Prophet (ﷺ) came visiting me while I was (sick) in Mecca, ('Amir the sub-narrator said, and he disliked to die in the land, whence he had already migrated). He (i.e. the Prophet) said, "May Allah bestow His Mercy on Ibn Afra (Sa`d bin Khaula)." I said, "O Allah's Messenger (ﷺ)! May I will all my property (in charity)?" He said, "No." I said, "Then may I will half of it?" He said, "No". I said, "One third?" He said: "Yes, one third, yet even one third is too much. It is better for you to leave your inheritors wealthy than to leave them poor begging others, and whatever you spend for Allah's sake will be considered as a charitable deed even the handful of food you put in your wife's mouth. Allah may lengthen your age so that some people may benefit by you, and some others be harmed by you." At that time Sa`d had only one daughter.
Chapter 3: To will one-third of one's property
Al-Hasan said, “A Dhimmi (i.e., a non-Muslim living under the protection of an Islamic government) is not allowed to will more than one-third of his property. And Allah عز وجل said: “And so judge (you O Muhammad ﷺ) among them by what Allah has revealed…” (V.5:49)
I recommend that people reduce the proportion of what they bequeath by will to the fourth (of the whole legacy), for Allah's Messenger (ﷺ) said, "One-third, yet even one third is too much."
I fell sick and the Prophet (ﷺ) paid me a visit. I said to him, "O Allah's Messenger (ﷺ)! I invoke Allah that He may not let me expire in the land whence I migrated (i.e. Mecca)." He said, "May Allah give you health and let the people benefit by you." I said, "I want to will my property, and I have only one daughter and I want to will half of my property (to be given in charity)." He said," Half is too much." I said, "Then I will one third." He said, "One-third, yet even one-third is too much." (The narrator added, "So the people started to will one third of their property and that was Permitted for them.")
Chapter 4: The saying of a testator to the executor, "Look after my son,"
(the wife of the Prophet) `Utba bin Abi Waqqas entrusted (his son) to his brother Sa`d bin Abi Waqqas saying, "The son of the slave-girl of Zam`a is my (illegal) son, take him into your custody." So during the year of the Conquest (of Mecca) Sa`d took the boy and said, "This is my brother's son whom my brother entrusted to me." 'Abu bin Zam's got up and said, "He is my brother and the son of the slave girl of my father and was born on my father's bed." Then both of them came to Allah's Apostle and Sa`d said, "O Allah's Messenger (ﷺ)! This is my brother's son whom my brother entrusted to me." Then 'Abu bin Zam`a got up and said, "This is my brother and the son of the slave-girl of my father." Allah's Messenger (ﷺ) said, "O Abu bin Zam`a! This boy is for you as the boy belongs to the bed (where he was born), and for the adulterer is the stone (i.e. deprivation)." Then the Prophet (ﷺ) said to his wife Sauda bint Zam`a, "Screen yourself from this boy," when he saw the boy's resemblance to `Utba. Since then the boy did not see Sauda till he died.
Chapter 5: If a patient gives an evident clear sign by nodding
A Jew crushed the head of a girl between two stones. She was asked, "Who has done so to you, soand- so? So-and-so?" Till the name of the Jew was mentioned, whereupon she nodded (in agreement). So the Jew was brought and was questioned till he confessed. The Prophet (ﷺ) then ordered that his head be crushed with stones.
Chapter 6: A legal heir has no right to inherit through a will
The custom (in old days) was that the property of the deceased would be inherited by his offspring; as for the parents (of the deceased), they would inherit by the will of the deceased. Then Allah cancelled from that custom whatever He wished and fixed for the male double the amount inherited by the female, and for each parent a sixth (of the whole legacy) and for the wife an eighth or a fourth and for the husband a half or a fourth.
Chapter 7: Giving in charity at the time of death
A man asked the Prophet, "O Allah's Messenger (ﷺ)! What kind of charity is the best?" He replied. "To give in charity when you are healthy and greedy hoping to be wealthy and afraid of becoming poor. Don't delay giving in charity till the time when you are on the death bed when you say, 'Give so much to soand- so and so much to so-and so,' and at that time the property is not yours but it belongs to so-and-so (i.e. your inheritors).
Chapter 8: The Statement of Allah aza'wajal: "... After the payment of legacies he may have bequeathed or debts..."
It is mentioned that Shuraih, Umar bin Abdul-Aziz, Tawus, Ata and Ibn Udhaina regarded as valid the acknowledgement of a debt by a sick man. Al-Hasan said, "The most valid charity is what is given on the last day of one's present life and the first day of the life to come (i.e., on the day one dies)."
Ibrahim and Al-Hakam said, "If a sick person absolves an heir from debt, the heir is regarded as absolved." Rafi bin Khadij made a will that his Fazariyya wife should not let anybody share with her the contents of her house.
Al-Hasan said, "If somebody on his deathbed says to his slave, 'I have freed you', the manumission is valid."
Ash-Sha'bi said, "If a dying woman says, 'My husband has paid what he owed me and I have received it,' her confession is valid." Some people say, "The dying person's confession (of debt to some of his heirs) is not valid because such a confession rouses suspicion." But they approve of a confession concerning a trust, goods, and silent partnership, but the Prophet ﷺ said, "Avoid suspicion, suspicion is the worst of false tales."
It is not legal for one to eat up the Muslims' wealth (unjustly), for the Prophet ﷺ said, "The sign of a hypocrite is that when he is entrusted with something he proves treacherous." And Allah تعالى said:
"Verily! Allah commands that you should render back the trusts to those to whom they are due..." (V.4:58), without restricting this order to the heirs or some other people.
The Prophet (ﷺ) said, "The signs of a hypocrite are three: Whenever he speaks he tells a lie; whenever he is entrusted he proves dishonest; whenever he promises he breaks his promise."
Chapter 9: The explanantion of the Statement of Allah Taa'la: "... After payment of legacies that they may have bequeathed or debts..."
The Prophet ﷺ is reported to have judged that the debt should be paid before the execution of the will.
The Statement of Allah عز وجل: "Verily! Allah commands that you should render back the trusts of those, to whom they are due;…" (V.4:58).
So, returning the trust must take precedence over the execution of the voluntary will.
The Prophet ﷺ said, "No giving in charity is recommended except if one is wealthy." Ibn Abbas said, "A slave cannot make a will without his master's consent." The Prophet ﷺ said, "A slave is a guardian of the property of his master."
Hakim bin Hizam said, "I asked Allah's Messenger (ﷺ) for something, and he gave me, and I asked him again and he gave me and said, 'O Hakim! This wealth is green and sweet (i.e. as tempting as fruits), and whoever takes it without greed then he is blessed in it, and whoever takes it with greediness, he is not blessed in it and he is like one who eats and never gets satisfied. The upper (i.e. giving) hand is better than the lower (i.e. taking) hand." Hakim added, "I said, O Allah's Messenger (ﷺ)! By Him Who has sent you with the Truth I will never demand anything from anybody after you till I die." Afterwards Abu Bakr used to call Hakim to give him something but he refused to accept anything from him. Then `Umar called him to give him (something) but he refused. Then `Umar said, "O Muslims! I offered to him (i.e. Hakim) his share which Allah has ordained for him from this booty and he refuses to take it." Thus Hakim did not ask anybody for anything after the Prophet, till he died--may Allah bestow His mercy upon him.
I heard Allah's Messenger (ﷺ) saying, "All of you are guardians and responsible for your charges: the Ruler (i.e. Imam) is a guardian and responsible for his subjects; and a man is a guardian of his family and is responsible for his charges; and a lady is a guardian in the house of her husband and is responsible for her charge; and a servant is a guardian of the property of his master and is responsible for his charge." I think he also said, "And a man is a guardian of the property of his father."
Chapter 10: If somebody founds an endowment (or bequeathes) his relatives by a will
Narrated Anas رضي الله عنه: The Prophet ﷺ said to Abu Talha, "Give (your garden) to the poor amongst your relatives." So he gave it to Hassan and Ubai bin Ka'b.
Anas added in another narration, "So he gave it to Hassan and Ubai bin Ka'b who were nearer relatives to him than I." The relation between Hassan and Ubai to Abu Talha was as follows: Abu Talha’s name was Zaid, the son of Sahl, the son of Al-Aswad, the son of Haram, the son of Amr, the son of Zaid Manat, the son of Adi, the son of Amr, the son of Malik, the son of An-Najjar. Hassan was the son of Thabit, the son of Al-Mundhir, the son of Haram, this means that Abu Talha and Hassan had a common great grandfather (i.e., Haram, the third in the line of descent). Hassan and Abu Talha and Ubai had a common ancestor, Amr bin Malik, the sixth in the lineage, as Ubai was the son of Ka’b, the son of Qais, the son of Ubaid, the son of Zaid, the son of Mu'awiya, the son of Amr, the son of Malik, the son of An-Najjar.
Some scholars say, "If one wants to will some of his wealth to one's relatives, they must be among those who share a Muslim common ancestor with one."
The Prophet (ﷺ) said to Abu Talha, "I recommend that you divide (this garden) amongst your relatives." Abu Talha said, "O Allah's Messenger (ﷺ)! I will do the same." So Abu Talha divided it among his relatives and cousins. Ibn 'Abbes said, "When the Qur'anic Verse: "Warn your nearest kinsmen." (26.214) Was revealed, the Prophet (ﷺ) started calling the various big families of Quraish, "O Bani Fihr! O Bani Adi!". Abu Huraira said, "When the Verse: "Warn your nearest kinsmen" was revealed, the Prophet (ﷺ) said (in a loud voice), "O people of Quraish!"
Chapter 11: Are children and women included under the term of relatives (concerning wills)
When Allah revealed the Verse: "Warn your nearest kinsmen," Allah's Messenger (ﷺ) got up and said, "O people of Quraish (or said similar words)! Buy (i.e. save) yourselves (from the Hellfire) as I cannot save you from Allah's Punishment; O Bani `Abd Manaf! I cannot save you from Allah's Punishment, O Safiya, the Aunt of Allah's Messenger (ﷺ)! I cannot save you from Allah's Punishment; O Fatima bint Muhammad! Ask me anything from my wealth, but I cannot save you from Allah's Punishment."
Chapter 12: Can the founder of an endowment have the benefit of his endowment?
'Umar رضي الله عنه stipulated that the administrator of an endowment could eat from the yield of the endowment. The founder of an endowment or somebody else may be the trustee of the endowment. Similarly, if one offers a Badana (i.e., camel for sacrifice) or something else in Allah’s Cause, he is allowed to benefit by it in the same way as others benefit by it even if he did not stipulate that.
The Prophet (ﷺ) saw a man driving a Badana (i.e. camel for sacrifice) and said to him, "Ride on it." The man said, "O Allah's Messenger (ﷺ)! It is a Bandana." (The Prophet (ﷺ) repeated his order) and on the third or fourth time he said, "Ride it, (woe to you" or said: "May Allah be merciful to you).
Allah's Messenger (ﷺ) saw a man driving a Badana and said to him, "Ride on it," and on the second or the third time he added, "Woe to you."
Chapter 13: If one declares his wish to found an endowment
As Umar رضي الله عنه founded an endowment and said that it was not sinful for its administrator to eat from its yield, but he did not specify whether he (i.e., Umar) or someone else would be its administrator. The Prophet ﷺ said to Abu Talha, "I recommend that you should divide it (i.e., the garden) among your relatives." So Abu Talha agreed and distributed it among his relatives and his cousins.