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2. "O you who believe! Call to witness between you, when death draws nigh to one of you, at the time of making the will two just persons from among you, or two others from among others than you" (5:106)
3. "Allāh enjoins you concerning your children: the male shall have the equal of the portion of two females; if there are more than two females, they shall have two-thirds of what he has left, and if there is one, she shall have the half: and as for his parents, each of them shall have the sixth of what he has left if he has a child; but if he has no child and only his two parents inherit from him, then his mother shall have the third; but if he has brothers, his mother shall have the sixth after the payment of any bequest he may have bequeathed or a debt............And you shall have half of what your wives leave if they have no child: but if they have a child, you shall have the fourth of what they leave after payment of any bequest they may have bequeathed or a debt: and they shall have the fourth of what you leave if you have no child, but if you nave a child, they shall have the eighth of what you leave after payment of any bequest you may have bequeathed or a debt; and if a man or a woman having no children leaves inheritance, and he (or she) has a brother or a sister, each of them two shall have the sixth; but if they are more than that, they shall be sharers in the third. after payment of any bequest that may have been bequeathed or a debt that does not harm others" (4:11, 12).
Every man who owns property is required to make a will (wasiyyah) (v. 1, h. 1) which should be properly witnessed (v. 2). The will was ordained especially for charitable purposes and limited to one-third of the property (h. 2), the heirs receiving specified portions (v. 3: h. 9), no will being allowed in
their favour (h. 3). Giving away property to needy relatives is a charitable object (h. 4).
If there is a debt due from the testator for which his property is responsible, the debt shall be paid before the execution of the will (h. 5). Muslims were not allowed to inherit from non-Muslims and vice-versa, the two being then at war with each other (h. 6). Prophets leave no inheritance, (h. 7).
If anything remains after giving away the appointed portions, it goes to the nearest male relative (h. 8). Hh. 9-11 cite certain cases of inheritance as decided by the companions of the Holy Prophet. When there are no near relatives, inheritance goes to the nearest great grand ancestor's descendants, even to a freed slave: in the last resort, when no claimant is found, it goes to the Muslim state or the Muslim community (hh. 12-14). A child born crying is considered a person who can inherit or be inherited though he may die immediately afterwards (h. 15). A man who murders another cannot inherit from him (h. 16). An illegitimate child cannot inherit or be inherited (h. 17).
1 Ibn 'Umar reported,
The Messenger of Allāh, peace and blessings of Allāh be on him, said:
"It is not right for a Muslim who has property regarding which he must make a will that he should sleep for two nights (consecutively) but that his will should be written down with him.
(B. 55:1.)
2 Sa'd ibn Abī Waqqās said,
The Messenger of Allāh, peace and blessings of Allāh be on him, used to visit me at Makkah, in the year of the Farewell pilgrimage, on account of (my) illness which had become very
severe. So I said, My illness has become very severe and I have much property and there is none to inherit from me but a daughter, shall I then bequeath two-thirds of my property as a charity? He said, "No". I said, Half? He said, "No". Then he said:
"Bequeath one-third and one-third is much, for if thou leavest thy heirs free from want, it is better than that thou leavest them in want, begging of (other) people; and thou dost not spend anything seeking thereby the pleasure of Allāh but thou art rewarded for it, even for that which thou puttest into the mouth of thy wife."1
(B. 23:36.)
1. Sa'd later rose to prominence under 'Umar as the conqueror of Persia. The incident related here took place in the 10th year of Hijrah as the mention of the Farewell pilgrimage shows. This shows conclusively that the order to make a bequest, as laid down in 2:180, was never abrogated. The hadīth further shows that the will was prescribed especially for charitable objects, and therefore only one-third of the property could be disposed of by will, so that the heirs may not be deprived altogether.
3 Abū Umāmah said,
I heard the Messenger of Allāh, peace and blessings of Allāh be on him, say in his sermon in the Farewell pilgrimage: "Surely Allāh has given to every one entitled to anything his due, therefor, there shall be no bequest for one who inherits."2
(AD-Msh. 12:20.)
4 Anas reported, The Messenger of Allāh, peace and blessings of Allāh be on him, said to Abū Talhah:
"Give it to the needy from among thy near relatives." So he gave it to Hassān and Ubaiyy ibn Ka'b, . . . . and they were nearer to him than my self.3
(B. 55:10.)
1. As the shares or the heirs are fixed by the Holy Qur'ān, a will in favour of the heirs would practically be an annulment of that injunction. If, however, the heir, agreed, there would be no objection to a testator dispensing of his property in a particular manner.
2. Abū Talhah had property which he wanted to devote to charitable objects. The Holy Prophet advised him to give it to his own needy relatives who were not entitled to receive anything as heirs.
5 It is mentioned that
the Prophet, peace and blessings of Allāh be on him, ordered the debt to be paid before the execution of the will.4
(B. 55:9.)
6 Usāmah reported,
The Prophet, peace and blessings of Allāh be on him, said:
"The Muslim does not inherit from the unbeliever, nor does the unbeliever inherit from the Muslim."5
(B. 85:25.)
7 'Ā'ishah reported,
'When the Messenger of Allāh, peace and blessings of Allāh be on him, died,
the wives of the Prophet, peace and blessings of Allāh be on him, intended sending 'Uthmān to Abu Bakr, demanding their share of inheritance. 'Ā'ishah said, Did not the Messenger of Allāh, peace and blessings of Allāh be on him, say "We are not inherited whatever we leave is a charity."
(B. 85:2.)
4. The debts take precedence because the property to which the will relates can only be ascertained after the debts are paid.
5. For eight years at Madīnah the Muslims and the disbelievers were divided into two camps at war with each other, and this order was probably given under these circumstances.
8 Ibn 'Abbās reported,
The Prophet, peace and blessings of Allāh be on him, said:
"Give the appointed portions to those entitled to them. Then whatever remains is for the nearest male."6
(B. 85:4.)
9 Zaid said,
When a man or a woman leaves behind a daughter, she gets one-half; and if there are two (daughters) or more, they get two-thirds; and if there is a male with them, beginning is made with him who inherits with them and he is given his appointed portion. and what remains (is divided among the children), the male having the portion of two females.7
(B. 85:4.)
6. This is considered to be the basic rule in inheritance. The appointed portions are given in v. 3. If anything remains after that, it goes to the nearest male relative.
7. The application of the rule given in the first part fails in some cases. A person leaves both parents who would take one-third, two or more daughters who would take two-thirds, and a husband or wife for whom nothing remains. If all the children are treated alike, whether there are only sons or only daughters or sons and daughters, the difficulty would not arise. In the latter part of the hadīth it is stated that if there are sons and daughters, beginning p. 339 should be made with the person who inherits with them. If this rule is applied in all cases, the difficulty does not arise. Thus. if there are parents and husband or wife along with children, they will receive their shares first, one-sixth each in the case of parents and one-fourth or one-eighth in the case of husband or wife, and the remainder would go to sons or sons and daughters; but if there are daughters only, they would take one-half or two-thirds of the remainder, as the case may to be.
10 Zaid said,
The children of a son take the place of a son, when there Is no son besides them; their males are like their males and their females like their females; they inherit as they inherit and they preclude (other relatives) as they preclude; and the son of a son does not inherit with the son.8
(B. 85:6.)
11 Ibn 'Abbās said,
My son's son inherits
8. The son's children are thus deprived if there is a son living. There is nothing related from the Holy Prophet in this respect and the companions had different opinions in matters relating to inheritance (h. 11), The opinion given by Zaid is, therefore, not final. In B. 85: 7 , it is stated that Ibn Mas'ūd gave a certain portion to the daughter of a deceased son, treating her as a second daughter. Taking this case into consideration, a deceased son's children should take the place of their father.
from me precluding my brothers, why should I not inherit from my son's son? And different opinions are related from 'Umar and 'Alī and Ibn Mas'ūd and Zaid.
(B. 85:8.)
12 Buraidah said,
A man from. among the Khuzā'ah died, and his inheritance was brought to the Prophet, peace and blessings of Allāh be on him. He said, "Search for his heir or one related to him on the female side." But they could not find a heir for him, nor one related on the female side. So the Messenger of Allāh, peace and blessings of Allāh be on him, said Give it to the nearest connected with him through a great-grand-ancestor from among the Khuzā'ah"9
(AD-Msh. 12:19.)
9. In this case the inheritance was given to a very remote ancestor's descendants. According to the hadīth that follows, when no other heirs could be found it was given to a freed slave. Only in extreme cases was the property made over to the State treasury (bait-al-māl), as stated in h. 14. But then the State was also made responsible for paying justly contracted unpaid debts of deceased persons.
13 Ibn Abbās reported,
A man died, and he did not leave any heir except a slave whom he had set free. The Prophet, peace and blessings of Allāh be on him, said, "Has he any one (to inherit)?" They said, None, except a slave whom he had set free. So the Prophet, peace and blessings of Allāh be on him, gave his inheritance to him.
(AD-Msh. 12:19.)
14 Miqdām said,
The Messenger of Allāh, peace and blessings of Allāh be on him, said:
"I am nearer to every believer than his own self; so whoever leaves behind a debt or children to support, it shall be our charge; and whoever leaves property, it is for his heirs; and I am the heir of the person who has no heir--p. 342 I inherit his property and liberate his captivity.10
(AD-Msh 12:19.)
15 Jābir said,
The Messenger of Allāh, peace and blessings of Allāh be on him, said:
"When a child is born crying, funeral service is held over him and he is inherited."
(IM-Msh. 12:19.)
16 Abū Hurairah said,
The Messenger of Allāh, peace and blessings of Allāh be on him, said
"The murderer does not inherit."
(Tr.-Msh. 12:19.)
17 'Amr ibn Shu'aib .reported,
The Prophet, peace and blessings of Allāh be on him, said:
Whoever holds illicit intercourse with a free woman or a slave-girl, the child (thus born) is illegitimate, and be does not inherit, nor is he inherited." (Tr-Msh. 12: 19.)
10. If there is a Muslim state, it would take the place of the Holy Prophet; if not, the Muslim community would inherit from the man who has no other heir, near or distant.