Ruling on the so-called binding will (wasiyah waajibah)

Question

Praise be to Allah.

In some Muslim countries the courts follow this law, which
deducts a part of the estate and gives it to the grandchildren in the name
of the “binding will” (wasiyah waajibah).

In brief, this law states that the will must be given to
members of the first level of daughters’ children and sons’ children so long
as there is no female between him and the deceased, a will like that which
their father would be entitled to of his father’s estate if he were alive at
the time of the grandfather’s death, subject to the following conditions:

1-It should not exceed one-third;
if it exceeds one-third then the grandchildren should take one-third only.

2-The grandson should not be an
heir.

3-The deceased grandfather should
not have given him the equivalent of what he is entitled to by means of a
bequest, gift or other means.

The shar’i basis of this will:

The memo explaining the shar’i basis of this will stated the
following: The view that it is obligatory to leave a will to relatives who
are not heirs was narrated from many of the fuqaha’ of the Taabi’een and
imams of fiqh and hadeeth who came after them, including: Sa’eed ibn
al-Musayyab, al-Hasan al-Basri, Tawoos, Imam Ahmad, Dawood, al-Tabari,
Ishaaq ibn Raahawayh and Ibn Hazm. The basis of that is the verse in which
Allaah says (interpretation of the meaning):

“It is prescribed for you, when death approaches any of
you, if he leaves wealth, that he makes a bequest to parents and next of
kin, according to reasonable manners. (This is) a duty upon Al-Muttaqoon
(the pious)”

[al-Baqarah 2:180]

The view that some of the wealth of the deceased should be
given to relatives who are not heirs on the basis that it is a will that is
binding upon his wealth if he did not bequeath anything is the view of Ibn
Hazm, which was based on the views of some of the Taabi’een, and it was
narrated in one report from Imam Ahmad. End quote.

This text implies the following:

1 – Obligation of the will

The verse indicates that the will is obligatory for two
reasons:

(i)The word kutiba (it is
prescribed), which means it is enjoined.

(ii)The phrase haqqan ‘ala
al-muttaqeen “a duty upon Al-Muttaqoon (the pious)” which is a
phrase which indicates that it is obligatory.

2 – If he did not leave a bequest, then the will should be
executed even though he did not bequest it, in accordance with the state
law. They attributed this view to Ibn Hazm (may Allaah have mercy on him),
but we shall see below that Ibn Hazm did not discuss it in this manner which
is mentioned in the state law.

The scholars differed concerning this verse: is it abrogated
or not?

The majority (including the four Imams, Abu Haneefah, Maalik,
al-Shaafa’i and Ahmad – may Allaah have mercy on them) are of the view that
it is abrogated. They quoted a number of matters as evidence for that:

(i)Among the companions of the
Prophet (peace and blessings of Allaah be upon him) are those from whom
there is no report that they left wills (wasiyah) and there is no report
that anyone denounced that. If it had been obligatory then they would not
have failed to do it and it would have been narrated from them in a clear
text that they acted upon it.

(ii)The will (wasiyah) is a gift,
and a gift is not binding during a person’s lifetime, so it cannot become
binding after his death.

(iii)A will given to an heir is
abrogated by the verses on inheritance, according to the majority (of
scholars), or it is abrogated by the hadeeth “There is no bequest (wasiyah)
for an heir” according to some scholars. So this verse has been abrogated in
both its meanings and its rulings, one of which is a bequest to an heir.

Ibn ‘Abd al-Barr (may Allaah have mercy on him) said: They
are unanimously agreed that it is not obligatory to make a will, apart from
a group who held the odd view that it is obligatory to do so. End quote from
al-Tamheed (14/292).

Abu Dawood (2869) narrated that Ibn ‘Abbaas (may Allaah be
pleased with him) said: The best of the bequest to the parents and
relatives. The will remained like that until it was abrogated by the verse
on inheritance. Classed as saheeh by al-Albaani in Saheeh Abi Dawood.

Some of the salaf were of the view (which is also mentioned
by Ibn ‘Abbaas – may Allaah be pleased with him – according to one of the
two reports narrated from him) that the verse is not abrogated, rather the
relatives who are heirs were excluded from it, but the obligation remains in
effect with regard to non-heirs.

So this verse is to be understood in the light of the verses
on inheritance or the hadeeth “There is no bequest for an heir.”

See: al-Mughni (8/391) and al-Muhalla (9/312)

Compliance with this will that is dictated by state laws:

1 – Although they call it a wasiyah (bequest, will), it is in
fact a meeraath (inheritance).

Hence Shaykh Muhammad Abu Zahrah said in his book Sharh
Qanoon al-Wasiyah (p. 239), after mentioning the rulings on wills in
state laws: This is a summary of the rulings on the binding will (wasiyah
wajibah). … The aim, purpose and motive behind these rulings are the same as
those behind the rulings on the division of the estate. So in the light of
this binding will, the state law grants this share of the estate to the
children of the one who died before his parents as an obligatory
inheritance, which is what he would have been entitled to if he had outlived
his parents, so long as it is no more than one-third. As that is the aim of
the state law, all the rulings lead to making this binding will like a fixed
share of the estate, thus becoming binding with no reason to make it
binding, hence it is executed automatically every time, and thus it becomes
confused with the division of the estate as prescribed in sharee’ah. End
quote.

Once it becomes confused with the division of the estate as
prescribed in sharee’ah, then it is definitely invalid, because Allaah, may
He be exalted, has allocated the shares of inheritance Himself, and He has
explained them in detail in His Book. Then He says (interpretation of the
meaning):

“These are the limits (set by) Allaah (or ordainments as
regards laws of inheritance), and whosoever obeys Allaah and His Messenger
(Muhammad صلى الله عليه وسلم) will be
admitted to Gardens under which rivers flow (in Paradise), to abide therein,
and that will be the great success.

14. And whosoever disobeys Allaah and His Messenger
(Muhammad صلى الله عليه وسلم), and
transgresses His limits, He will cast him into the Fire, to abide therein;
and he shall have a disgraceful torment”

[al-Nisa’ 4:13-14]

This binding will (wasiyah waajibah) implies altering the
ruling of Allaah, may He be exalted, and that is sufficient sin and obvious
misguidance, for no one is better in judgement than Allaah, may He be
glorified and exalted.

“Do they then seek the judgement of (the days of)
Ignorance? And who is better in judgement than Allaah for a people who have
firm Faith”

[al-Maa’idah 5:50]

2 –As for the verse [al-Baqarah 2:180] that they quote as
evidence for this binding will being prescribed, they go against it in three
ways:

(i)Allaah says “if he leaves
wealth (khayran)”. This is a restriction on the command to make a will;
no one is enjoined to make a will except the one who has khayran,
which means a great deal of wealth. This was stated by ‘Ali and Ibn ‘Abbaas
(may Allaah be pleased with them), but the scholars differed as to its
amount. Ibn Qudaamah (may Allaah have mercy on him) favoured the view that
what is meant is a large amount of wealth such that there is something left
over after the heirs are made independent of means, because the Prophet
(peace and blessings of Allaah be upon him) gave a reason for not allowing a
bequest of more than one-third (of one’s wealth), when he said: “If you
leave your heirs independent of means, that is better for them than leaving
them dependent and asking from people.” Narrated by al-Bukhaari (1296) and
Muslim (1628). See al-Mughni (8/391).

This restriction (“if he leaves wealth (khayran = a lot of
wealth)”) is a condition of it being obligatory, as is clear. But the
state law ignores this condition, and gives them a share of the estate
whether the deceased left behind a large amount of wealth or not.

(ii)The word of Allaah
wa’l-aqrabeen (translated here as “and next of kin”) is general in
meaning and includes all relatives, so it includes grandchildren as well as
siblings and their children, paternal uncles and maternal uncles and their
children, and other relatives. Limiting it to grandchildren is another way
in which this law goes against this verse.

(iii)The verse does not allocate a
specific amount to the binding will or define the share of the father or
anyone else. If a man bequeaths, say, one-sixth to his grandson, then he has
obeyed the command mentioned in the verse, but the state law does not regard
that as sufficient, rather it gives him the complete share which his father
would have got if he were alive, so long as it does not exceed one-third.
This is a third way in which this law goes against this verse.

3 – The reason why this state law was introduced, according
to the memo, was repeated complaints about cases where a father died before
his parents, and his young children were left poor and needy, then the
grandfather died and their paternal uncles took the entire inheritance,
leaving these grandchildren poor when if their father had been alive, he
would have had a share of the inheritance.

If this is the reason why this law was introduced, then why
did the law give the grandchildren a share of the estate without stipulating
that they should be poor? Rather it gives them this share even if they are
well off, but it should have limited it to cases of need.

Shaykh Muhammad Abu Zahrah (may Allaah have mercy on him)
said (p. 244): In fact if we accept this obligation (binding will), we must
take into account whether people are in need, because wills or bequests come
under the same heading as charity, so it must be given to the poor. And
because the binding will takes precedence over anything else, the definition
of next-of-kin should be broader. End quote.

4 – The state law restricts the relatives who are entitled to
this bequest and binding will to the grandchildren only, and gives them
their father’s share. It may be understood from the law that this is the
view of Ibn Hazm (may Allaah have mercy on him), but this is not his view.
Ibn Hazm (may Allaah have mercy on him) did not single out the grandchildren
for this bequest, rather it should be for all the relatives apart from the
heirs, and the person should have bequeathed something to at least three of
his relatives, because this is the minimum plural. Moreover, Ibn Hazm did
not set a specific amount for the portion of the wealth that is bequeathed,
rather it may be whatever the deceased wished. If he did not bequeath
anything then the heirs are the ones who should determine the amount of
wealth they want to give to the relatives.

Ibn Hazm (may Allaah have mercy on him) said: If a person
dies without leaving a will, then charity must be given from it of whatever
amount is possible, and that is a must, because bequeathing something is
obligatory, as we have narrated, therefore it is obligatory to give away
something of his wealth after his death. And because the deceased no longer
has any control over his wealth, the heirs should give away some of the
wealth, and there is no limit to that except what the heirs or executor of
the will see fit, without being unfair to the heirs. It is obligatory for
every Muslim to bequeath something to those of his relatives who do not
inherit, either because they are slaves or kaafirs, or because there is
someone who prevents them from inheriting, or because they will not inherit,
then he may bequeath whatever he wants to them, and there is no limit to
that. But if he does not do that, they should be given what the heirs or
executor of the will see fit. End quote.

Al-Muhalla (8/351).

Thus Ibn Hazm clearly stated that there is no limit to this
bequest.

5 – This binding will or bequest which is dictated by state
law was not suggested by any scholar throughout fourteen centuries of
history, which is sufficient to indicate that this law is invalid, because
the Prophet (peace and blessings of Allaah be upon him) said: “Allaah
will not cause my ummah to agree on misguidance.” Narrated by al-Tirmidhi
(2167) and classed as saheeh by al-Albaani in Saheeh al-Tirmidhi.

If this binding will or bequest in this form were correct,
why would the entire ummah have failed to act upon it until these latter-day
legislators came and tried to correct the injustice and unfairness
perpetrated by the imams, scholars and Muslims for fourteen centuries?!

6 – There are many cases in which, if a fair-minded person
thinks about it, he will realize that this law is invalid. For example:

(a)

The grandchildren may be well off and their paternal uncles
(the sons of the deceased) may be poor, but in this case too the law would
give the grandchildren a share of the inheritance in the name of the binding
will, even though their paternal uncles are more entitled to this money than
they are, because they are closer to the deceased than them, and are in need
of it.

(b)

Why does the state law care about the grandchildren and not
about the grandfathers and grandmothers who do not inherit, even though in
most cases they are in greater need and may be sick and unable to work, and
in need of medical treatment and maintenance?

Why does the law give something to the daughter’s daughter,
and not to the father’s mother, for example?

(c)

The daughter’s daughter may take more than the son’s daughter
takes. If someone dies and leaves behind a daughter and a daughter of a
daughter who is deceased, and a daughter of a son, and he leaves behind 30
feddans for example, then according to the binding will, the daughter’s
daughter in this case gets one third of the estate or 10 feddans, which
would have been her mother’s share if she was alive.

And the daughter and son’s daughter get the rest at a ratio
of 1:3, so the son’s daughter gets five feddans, or half of what the
daughter’s daughter gets!

Even though the son’s daughter is more entitled to it. Hence
the scholars were unanimously agreed that the son’s daughter should inherit,
and that the daughter’s daughter does not inherit, so how can a non-heir be
given more than an heir, even though their relationship (to the deceased) is
of the same degree?

(d)

The son’s daughter may take more than the daughter, because
if a person dies and leaves behind two daughters, the daughter of a deceased
son, and a sister, and he leaves behind 18 feddans for example, the amount
that the son’s daughter gets is one-third of the estate, which is 6 feddans,
and the rest is divided among the two daughters and the sister, with the two
daughters getting two-thirds, or 8 feddans, four each, and the sister
getting the remainder, which is four feddans!

This irregularity and contradiction points to human
imperfection and confirms the words of Allaah (interpretation of the
meaning): “Had it been from other than Allaah, they would surely, have
found therein many a contradiction” [al-Nisa’ 4:82].

The strongest objection to this state law is that it has in
fact become a kind of inheritance, hence the grandchildren take this share
even if the deceased did not bequeath anything to them, and they take it
regardless of whether he left a lot of money or a little, whether they are
poor or well off. All of this indicates that it has become like an
inheritance, and this is a rejection and change of the ruling of Allaah, may
He be exalted.

Secondly:

As for cases where they claim that they have introduced this
law as a remedy for poverty of the grandchildren, that may be solved in ways
that do not conflict with sharee’ah.

The best way is by teaching the rich that it is obligatory or
at least mustahabb for them to bequeath some of their wealth to their poor
relatives.

The second way, if he does not bequeath anything, is for the
heirs, if they are well off, to give the grandchildren or other poor
relatives some of this wealth, which will be an act of charity and
upholding ties of kinship on their part.

By means of these two methods, this problem may be solved
without going against sharee’ah.

Thirdly:

With regard to taking money by means of this binding will and
bequest, it is haraam, because Allaah says (interpretation of the meaning):

“O you who believe! Eat not up your property among
yourselves unjustly”

[al-Nisa’ 4:29]

Consuming people’s wealth unjustly means taking it by means
other than those which are prescribed and make it permissible.

The Prophet (peace and blessings of Allaah be upon him)
said: “Your blood, your wealth and your honour are sacred to you, as sacred
as this day of yours, in this month of yours, in this land of yours.”
Narrated by al-Bukhaari (67) and Muslim (1679).

We ask Allaah to bring the Muslim back to their religion.

And Allaah knows best.