Chapter on Wills and Bequests (Wasaya)

A bequest (wasiyyah) is a person's declaration during their lifetime that designates how a portion of their estate shall be distributed after their death. Islamic law permits bequests but circumscribes them carefully to protect the rights of legal heirs and to prevent the abuse of deathbed declarations. Ibn Abi Zayd al-Qayrawani outlines the Maliki school's rules on wills and bequests with precision.

The fundamental rule of Islamic inheritance law is that a bequest to a legal heir (waris) is prohibited without the unanimous consent of all other heirs. The Prophet said: 'There is no bequest in favor of an heir.' This prevents a person from using a bequest to favor one heir over another, circumventing the divinely ordained shares. If all the other heirs consent after the testator's death, the bequest to a co-heir becomes effective.

The maximum bequest is one-third of the net estate — the estate after debts are paid. This is the rule established by the Prophet's statement to Sa'd ibn Abi Waqqas: 'One-third, and one-third is much.' A person may not bequeath more than one-third without the heirs' consent. If a bequest exceeds one-third, the excess is void unless the heirs approve it.

The Maliki school holds that a bequest is a recommended act (mandub) for the person who has debts, obligations, or entrusted properties that need to be discharged after death. It is particularly recommended where the heirs may not be aware of these claims. It is disliked (makruh) to make a bequest if the heirs are in need and the bequest would diminish their shares. The Maliki school also holds that it is obligatory (wajib) to make a bequest for religious obligations that one was unable to fulfill — such as unfulfilled Hajj, missed fasts requiring expiation, or unpaid zakat — so that a proxy may carry them out after death.

Conditions for a valid bequest: the testator must be legally competent (adult, sane, free, not in a state of mortal illness that constitutes evidence of an attempt to manipulate inheritance — though the Maliki school has nuanced rules on deathbed declarations). The bequest may be made in favor of a third party (non-heir), a charitable cause (waqf, building of mosques, support of the poor), or for any lawful purpose. A bequest for a sinful purpose is void.

The Maliki school holds that a bequest made during a terminal illness (marad al-mawt) to a non-heir is limited to one-third, like any other bequest. Gifts (hibah) made during terminal illness are treated as bequests — reducing them to the one-third rule — to protect the heirs' rights. A person in mortal illness who gives away most of his estate as gifts would have those gifts treated as bequests and reduced proportionally.

A bequest may be revoked by the testator during his lifetime — it does not become irrevocable until death. If the testator sells or destroys the item bequeathed, the bequest lapses by implication. If the legatee (the recipient) dies before the testator, the bequest also lapses unless the testator re-confirms it.