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Al-waṣiyyah (Bequest) according to the Four Sūnni Schools: A Concise

Analysis

Article · March 2018

DOI: 10.9790/0837-2302115261

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IOSR Journal Of Humanities And Social Science (IOSR-JHSS)
Volume 23, Issue 2, Ver. 11 (February. 2018) PP 52-61
e-ISSN: 2279-0837, p-ISSN: 2279-0845.
www.iosrjournals.org

Al-waṣiyyah (Bequest) according to the Four Sūnni Schools: A

Concise Analysis.
Busari, Jamiu Muhammad*
[email protected] +2348153520182
*Dip, B.A, M.A, PGDE. Currently, a PhD Student at the Department of Religions
and Peace Studies, Islamic Studies Unit, Lagos State University, Ojo, Lagos, Nigeria.

Abstract: Al-waṣiyyah is an integral part of Islamic law of inheritance. Giving out a stipulated fraction out of
an estate willingly by a Muslim especially to non-heirs while alive is also an applauded mechanism of wealth
distribution and enthronement of peace and love among relatives in Islam. This, without mincing words has
been copiously enumerated by numerous scholars of the past and present. However, little have been done in
term of comparative analysis of the opinions and judicial verdicts of the scholars of the four Sūnni schools in
Islam especially to the English readers and learners. For this, this article is aim at briefly explain the concept of
Islam and Sharī‘ah, reasons for divergent of opinions among these schools, conditions and benefits of making
bequest and comparatively enumerate some divergent and convergent views of scholars as regards Al-waṣiyyah.
It was then concluded that flexibility and all-inclusiveness of Islamic law made it possible for scholars to
express divergent views on some religious, social, political and economic issues with huge reference to the
unadulterated main sources of Islamic law, Qur’an and Sunnah.

Keywords: Al-Waṣiyyah, Analysis, Inheritance, Sharī‘ah, Sūnni Schools.

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Date of Submission: 14-02-2018 Date of acceptance: 27-02-2018
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I. INTRODUCTION
Islam as a religion stipulates regulatory framework that encompasses all aspects of human life;
spiritual, social, economic and political.[1] It also directs mankind’s matters of earning and spending and as
emphasized by Al-Jibaly, it provides a systematic process of passing down wealth from predecessor to
successor,[2] and left nothing untouched; hence, al-waṣiyyah( bequest, will, legacy or testament) as a micro-
institution of Islamic Inheritance system (al-Farā’id) is a legal document that outlines on how one’s estate is to
be distributed in the event of affairs after the demise of the testator according to Islamic law (Sharī‘ah).[3]
Though, it is on record that al-waṣiyyah practice preceded Islamic law of inheritance (al-Farā’id/al-Mīrāth), it
remains an integral unit of the inheritance process which must be dealt with before the devolution of estate left
behind by a deceased Muslim. The divergent and convergent opinions of the Four Sūnni Schools of Thought
(al-madhāhib al-arba’) within the purview of Islamic law as regards al-waṣiyyah which ranges from its
institutionalization, abrogation and validity, due and maximum proportion to be earmarked, the beneficiaries
and other areas have generated huge literary debates among scholars of ages. On these premises, this workis
aimed at critically and comparatively analyse the concept of al-waṣiyyah according to the verdicts of the Four
Sūnni Schools. The work basically utilises the book entitled “al-Fiqh ‘alāMadhāhib al-Arba’- Islamic
Jurisprudence according to the four Sūnni Schools of thought” authored by ‘Abd al-Rahman al-Jazīrī.[4]
In giving concise but explicit analysis of the subject matter, the work briefly discusses Islam and
Sharī‘ah, origin and evolution of the four Sunni Schools, reasons for divergent opinions, concepts of al-farā’id
in Islam with special reference to al-waṣiyyah while the opinions of the four Sūnni Schools in the area of
definitions, sources of al-waṣiyyah, its pillars , conditions and legal verdicts, bequest for Hajj and Qur’an
recitation, bequest for selected people, bequest quotas and the will-executor are comparatively enumerated.

II. ISLAMANDSHARĪ‘AH
Islam encapsulates total submission to the whims and caprices of religious and mundane verdicts and
precepts as revealed by Allah and ably exemplified and enunciated by Prophet Muhammad (Peace be Upon
Him). Fazl-ur-Rahman al-Ansari emphasises Islam to be a monotheistic religion with universalistic outlook in
which connection between the Creator and the Creatures is paramount for the establishment of that which is
good and eradication of all that is evil through constant spiritual, moral and intellectual struggles for the

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 Al-waṣiyyah according to the Four Sūnni Schools: A Concise Analysis.

realisation of vicegerency of God.[5] Its therefore inevitably noted that, the genuine purpose of Islam is based on
originality of its core kernel which is directly sanctioned by God (Allah) through Qur’ān, the source through
which all principles and ordinances are drawn [6], the prophetic traditions which is the ultimate and legal
repository after the Qur’ān; and through these, Islamic law (Sharī‘ah) was born. Sharī‘ah from all facets is the
indubitable mechanism in Islam through which all religious and civil engagements are metered. Ambali quoting
Ruxton on the synergy between Islam and its law says:
In Islam there is but one Law, and it’s the religion law, signified in the word
Sharī‘ah. In other words, it is the only supreme law; for it emanates from God,
who decreed its main bases in the Koran. [7]
As emphasised by Muneer and Muhammad Mumtaz, Sharī‘ah cannot be understood as a set of civil or
criminal or personal and public law alone as it has been conceived by many in modern age, rather, it is a
conglomeration of comprehensive set of fundamental truths, socio-ethical legal precepts and higher principles
and a practical way of life.[8] Sharī‘ah in Islam is sourced from primary sources which are the Qur’ān and the
traditions of the Prophet (Hadīth/ Sunnah) fortified with secondary sources which include Ijmā’ (Consensus of
Scholars), Qiyās (Analogical deduction) and others.[9]

III. THE FOUR SŪNNI SCHOOLS OF THOUGHT AND DIVERGENCE OF OPINIONS

The Four Sūnni Schools of Thought evolved after the Prophet and his Companions. The known two
distinct groups in Islamic world are the Sūnni and the Shiite(the preponderants of Ahl al-Bayt hegemony).
Majority of the Sūnni Muslims follow four Madhāhib (Schools) of Islamic jurisprudence. These are the Hanafi
School of Imām Nu‘mān Ibn Thābit popularly known as Abū Hanīfah(699-767 CE), the Māliki School of Imām
Mālik Ibn Anas (715-795 CE), the Shafi‘ī School of Imām Muhammad Ibn Idrīs al-Shāfi‘ī (767-820CE) and
the Hanbali School of Imām Ahmad Ibn Muhammad Ibn Hanbal (780-855 CE).[10] All these four Madhāhib
mostly upheld the primacy of the four fundamental principles of Islamic law viz-ā-viz the Qur’ān, the Sunnah,
Ijmā’ and the Qiyās.[11]
However, there exist differences of opinions as regard religious rulings which are believed to have
occurred for various reasons. Scholars of ages have also identified and discussed the causes of these differences
which are attributed to many reasons. In his own submission, Muhammad Ibn Sālih al-‘Uthaymeen opined that
these differences among the scholars of the Madhāhib were as the result of these seven causes:
i- The relevant evidence was not known to the scholar who erred in judgement.[12]
ii- The relevant hadīth is known to the scholar, but he does not have any confidence in its narrator and regards
it to be in contradiction to a stronger evidence.[13]
iii- The hadīth was known to the scholar but he did not recollect it.[14]
iv- The scholar is aware of the evidence but understand it incorrectly.[15]
v- The scholar is aware of the hadīth but it is in actual fact abrogated.[16]
vi- The scholar believes that the particular evidence in question conflicts with either a stronger text or a
consensus of the scholars.[17]
vii- The scholar gives a ruling on the basis of a weak hadīth, or his argumentation and deduction is poor.[18]

Abu Ameenah Bilal Philip in his own submission believes that these differences of opinions among the
scholars of Madhāhib arose for various reasons which include interpretation of word meanings and grammatical
construction, hadīth narration and authenticity, admissibility of certain principles (which include ijmā’, customs
of the Madeenites, Istihsan and opinion of Sahābah) and methods of Qiyās .[19] It has to be noted, as affirmed by
Abdul-Rahman Doi that all these Imāms and scholars of these schools were teachers and pupils of each other,
all of them are working for a common goal, that is, to serve the posterity in enhancing their knowledge and
knowledge of the Ummah (Muslim Community) about the Sharī’ah.[20]

IV. AL-FARA’ID’S CONCEPTS IN ISLAM WITH SPECIAL REFERENCE TO AL-

WAṢIYYAH
‘Ilm al-Farā’id or ‘Ilm al-Mīrāth in Islamic legal terminology means inheritance knowledge of what to
be divided from the property of a deceased Muslim among his successors. It is a Science in Islamic law which
gives rules that guides as to who inherits and who is to be inherited; and what shares go to the heirs. [21]In other
definition, Haroon sees it as a science which stipulates the mechanisms of devolution of “anything that could be
shared as belonging to those who have legal rights to take it after the death of the owner”[22]
Under Islamic law, the concept of succession was divinely ushered in with the revelation of inheritance
verses “ Āyāt al-Mawārith” (which include Q4:11, 12 and 176).[23] This inevitably abrogated the Jahiliyyah
(Ignorance) practices of disinheriting women and legitimisation of heirs by oath; [24] thus, these and others were
replaced by inheritance through fixed or Qur’ānic Shares ( Irth bi al-furūd), through agnatic method (Irth bi
at-Ta‘sīb) and through the residuary process(Irth bi al-Arhām). It is a religious abhorrence for a Muslim to

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 Al-waṣiyyah according to the Four Sūnni Schools: A Concise Analysis.

dispose his estate according to his own wishes and desires without recognising the provision of Sharī’ah. If he
attempts to do so, it will tantamount to an act of grave transgression which will make him to usurp the huqūq
(rights) of the rightful heirs in flagrant violation of Allah’s command pertaining to inheritance.[25]
However, the flexibility and all-inclusiveness of Islamic law allows Muslims to make a bequest from
his estate to beneficiaries while alive; thus the concept of al-waṣiyyah or al-Tawsiyyah ( will-making) emerged.
Al-Jibali defines Al-waṣiyyah as a set of instructions given by a person to individuals whom he expects to
survive him which include monetary distributions, assignment and rights.[26] According to Salisu quoting Imām
Muhammad Idrīs al-Shāfi‘ī, al-Waṣiyyah means “ authorising possession of one’s wealth or possession to
someone else after one’s death by way of charity (tabaru‘).[27] The will or bequest is one of the fundamental
practices enjoined upon Muslims at the early stage of Islam as enshrined in Q2:180 before it was legally
abrogated with verses of inheritance and hence; it became recommendatory and discretionary for Muslims to
activate al-waṣiyyah term from their estate in as much it does not exceed stipulated quota of one-third of the
total estate;[28] and even after its abrogation, it became a germane requisite of the whole succession process
which must be done with before the devolution of the estate. This was affirmed in Q4:11 and 12 where Allah
says “… After the payment of bequest or debt…”. Furthermore, the availability of witnesses to the writing and
pronouncement of bequest is one of the fundamental aspects of al-Wasiyyah.[29] The witness/witnesses must be
Muslim and if not possible, two non-Muslims are accepted provided that their testimonies is validated as
explained in Q5:106-108.
The Jurists also unanimously agreed that quantum of wealth or property of which a bequest or legacy
can be bequeathed with equity must be an abundant wealth in tandem with various aḥādith in which the Prophet
advised the dying companion who sought his opinion on what to give out as legacy or bequest. He told him
that leaving their heirs wealthy is better for them than leaving them poor. This was the views and verdicts of
‘Āishah, Ali bn Abi Ṭālib and some Sahābah.[30]
All in all, it is important to point out the following:
a. Al-waṣiyyah was mandatory before the revelation of the verses of inheritance.
b. The bequest verses were abrogated by inheritance verses in the cases of legal heirs but remain valid in
favour of non- heirs.
c. Al-waṣiyyah is voluntary and recommendatory as a form of Istiḥsān (doing good).
d. The core value of bequeathing; that is, justice, usefulness to the legatee and not exceeding mandate of 1/3
most be upheld at any time.
e. Al-waṣiyyah is unacceptable and has no merit when the wealth of the Mūsiy (The Testator) is meager and
scanty.

V. CONDITIONS AND BENEFITS OF AL-WAṢIYYAH (SHURŪT WA MANĀFI‘ AL-

WAṢIYYAH)
Al-waṣiyyah in Islam must be Sharī‘ah-compliant wills in the sense that:
i- Testator (al-Mūṣiy) can only give away up to one-third of his or her property.
ii- The Legatee (al -Mūṣālahu) must not be an individual who is a legitimate heir to inheritance. [31]
iii- The utmost benefits behind Al-waṣiyyahis is its adoption as a valuable tool that affords the testator
flexibility to bequeath assets to those he or she deems deserving; and it also safeguards the close kin who
are entitled to their share under Sharī‘ah law from being disinherited.
iv- It gives non-Inheriting relatives such as adopted child and non-biological parents leverages of being
legitimately enriched and accommodated into the testator largesse. [32]
v- There must be an existence of a genuinely written will by the testator or a witnessed verbal pronouncement
attested to by relatives as made by the testator while the Sīqah (pronouncement) of Ijāb and Qubūl- offer
and acceptance- is necessary.
vi- The willed property (Mūṣā bihi) must not exceed one-third of total estate.
vii- The Testator (Al-Mūṣiy) must be an adult, sane and has the legal capacity to dispose of whatever he
bequests.
viii- The willed property(Mūṣā bihi) must not be made in favour of legal heir at the time of death of testator
because “there is no bequest for the heir”.[33]
ix- The Legatee (Al-Mūṣā lahu) must be in existence at the time of death of the testator.
x- The appointed will executor (Al-Wālī Al-Mukhtār / Al-Wāsī Al-Mukhtār) appointed by the testator must
endeavour to carry out the wishes of the testator. [34]

VI. AL-WAṢIYYAH ACCORDING TO THE FOUR SŪNNI SCHOOLS

Comparatively, the following are enunciated in scrutinizing the judicial and religious locus standi of
the founders and scholars of the four Sūnni Schools in tandem with al-waṣiyyah concept as contained in the
book under focus:

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 Al-waṣiyyah according to the Four Sūnni Schools: A Concise Analysis.

A. Meaning of Al-Waṣiyyah
The Hanafi School defines al-wasiyyah as a “means of transference of right of a certain property to
someone else through charity after the demise of the owner” [35] In Māliki School, it is viewed as “aqd (contract)
that obligate one-third of the testator’s property to be given out to legatee with the occurrence of testator’s
death” .[36]The Shāfi‘ī School sees al-wasiyyah as “ a charity that must be fulfilled after the death of the testator
either being a bequest made verbally or not” [37]; while the Hanbali School defines it as “ an issue to be
actualised after death like giving an order of testacy to someone to nurture his young children (from his wealth)
or marry his daughters in marriage or expend one-third of his property and so on”.[38]
It is shown from the above definitions as given by these four Sūnni Schools that al-wasiyyah entails
the transference of certain portion of someone’s estate (not exceeding one-third) to his legatee(al-Muhsa lahu)
while alive and which must be executed after his death before the devolution of whole property among the heirs.

B. Pillars and Conditions of Al-waṣiyyah

In unison, three Schools (Hanbali, Shāfi‘ī and Māliki) opined that the Pillars of al-wasiyyah are four ; these
are:
i- The Testator (Al-Muhsy) –the One who makes the bequest.
ii- The Legatee (Al- Muhsa lahu) the one whom the bequest is made for.
iii- The Estate or Property ( Al-Muhsa bihi)- the property to be taken as bequest by the legatee
iv- The Language of offer and acceptance (Sīqat al-Ijāb wa al-Qubūl).[39]
In their own submission as regards the pillars of al-waṣiyyah, the Hanafi school believed that there is
only one pillar of al-wasiyyah; that is, al-Ijāb wa al-Qubūl (offer and acceptance) which they believed has
encapsulated the other three pillars propounded by other schools.[40] They believed the bequest entails the
condition of offer and acceptance in which the offer must be made by a capable testator while the acceptance is
validated only after the death of the testator. They opined strictly that the bequest execution involves “right of
ownership” only after the death of the testator. Some scholars of this school also opined that offer and
acceptance or offer and rejection has no meaning except after the death of the testator while some further opined
that acceptance is not a condition of al-waṣiyyah since al-waṣiyyah itself is a micro-mechanism in Islamic law
of inheritance; and that acceptance might either be by vocal response or by way of gesticulation (Ishārah). The
school also explained that the conditions of al-Wasiyyah entails the testator to be “matured”, must be a sane
person, must never be in damning debt, must not be a fugitive or criminal, must never be an inheritor at death
bed, not a slave and must not be suddenly afflicted with dumbness (al-akhras) at the time of giving bequest and
that the legatee must be known to the testator and the he/she must not be the killer of the testator either
unintentionally or intentionally. The school concluded that it is not mandatory for a legatee to be a Muslim; thus
giving a bequest to ahl al dhimmi (the protected non-Muslim) is allowed except the apostate (al-Murtad) who is
not eligible to benefit from the Muslim bequest [41]

There are two conditions that must be upheld as regards al-wasiyyah according to Māliki School. These are:
i. The testator must be a free man (Al-Hurr)
ii. He must be a sane person (al- ‘Āqil)
On the issue of offer and acceptance, the Maliki scholars opined that it must be an explicit utterance which
stipulates the offer and that the acceptance occurs after the death of the testator. It was further legalised that
even if the legatee died before accepting the bequest, his heirs would stand his stead in accepting the bequest
except when the waṣiyyah is not specific like the one bequeathed to the poor and indigents. They also discussed
a case whereby the bequest devolution was delayed to be accepted after the death of the testator until the
bequeathed property appreciated. The scholars of the school opined thus:
i. Some believed that all of the bequeathed properties belong to the legatee
ii. Some scholars believed that the bequest belong to the testator, while others
iii. Believed that the legatee has only one-third of the appreciated property.[42]
According to their own opinions, the Shāfi‘ī School enumerated the waṣiyyah conditions thus:
i. The testator must be matured, sane, freeman and self-independent in his judgement
ii. It is not compulsory for both testator and legatee to be Muslim. It is also permissible to bequeath property to
an apostate with the condition that he is reverting back to Islam
iii. The legatee must be sane and matured and there is no bequest for a dead person
iv. The language of offer and acceptance must be an explicit utterance that specify the bequest either loudly or
in written form or using epithet( Kināyah) such as “he has portion in my property”
v. The acceptance language can be explicit also by saying “I have accepted it”, but the validation of such
acceptance occur after the death of the testator.[43]
In the consensus opinions of the Hanbali Scholars on the condition of al-wasiyyah, it was agreed that:
i. The testator must be sane

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 Al-waṣiyyah according to the Four Sūnni Schools: A Concise Analysis.

ii. Testator be intelligent and conscious

iii. Testator must not be known for indolence or lassitude
iv. It is not compulsory for the testator nor the legatee to be a Muslim
v. It’s also mandatory that the legatee must not be the killer of the testator either intentionally or accidentally
vi. The testator has legal right to choose his legatee
vii. The legatee must be alive when the bequest was made
viii. The language of offer and acceptance must be explicit
ix. The acceptance must be after the death of the testator.[44]

It can now be deduced that, these schools agreed essentially on the pillars of al-waṣiyyah and
extensively agreed in some area of al-waṣiyyah condition which include the sanity of the testator, the language
of offer and acceptance, the legatee not be the killer of the testator, the bequest to be made by the testator while
alive and that only one-third of the testator’s estate can be bequeathed among others.

C. The Judicial Pronouncement of al-Waṣiyyah.

Abdur-Rahman al-Jazīrī opines that in some cases, al-waṣiyyah becomes mandatory, recommendatory
and forbidden; and on these, there are divergent opinions enunciated by the four schools. The Hanafi school
categorised the judicial verdict of al-wasiyyah as regard the testator into four; compulsory (al-wājibah),
recommendatory (al-mustahāb), acceptable (al-mubāh) and detestable (al-makrūh). According to the scholars of
the school, the compulsory bequest entails giving legal right to it owner like a bequest for the return of legacies
or debts. This is believed to be an obligation on any testator which must be returned to their rightful owner
without delay before or after his death.
The recommendatory bequest consists the right of Allah like writing a bequestfor al-kafārah
(atonement), Zakāt (alms-giving), fidyat al-ta‘ām li ṣā’imīn (feeding the fasting Muslims ), prayers and a
bequest to perform Hajj. In their submission, acceptable request is what the wealthy man gives to his immediate
family, neighbours and their likes as bequest (hibah–gift) out of his benevolence to assist them for a certain
condition which is not mandatory upon him because there is no bequest for legal heirs; while detestable bequest
is what is made by evil people upon themselves as legacies for their cronies and bad company.[45]
In the view of Shāfi‘ī School, the bequest verdict in Islamic law is divided into five:
i. Compulsory bequest such as payment of debt and return of legacies(al-wadā’i)
ii. Forbidden bequest like bequeathing the forbidden things for someone
iii. Detestable bequest such as giving more than one-third as bequest or given a bequest to a legal heir without
the consent of others
iv. Acceptable bequest like giving a bequest to an upright personality who is non-heir
v. Recommendatory bequest like the bequest make by a wealthy man for the indigents.[46]
The Hanbali School also divided the bequest juristic pronouncement into five; these are:
i. The compulsory bequest like return of legacies and payment of debt
ii. The recommendatory bequest for the non-heirs and indigents
iii. The detestable bequest such as writing a bequest by someone who has meagre property and shall be
inherited by people who are already in abject poverty
iv. The forbidden bequest such as bequest that exceed one-third of the whole property and or given a bequest
of more than one-third for one’s spouse (as gift-hibah)and
v. The acceptable bequest.[47]
In Maliki School, the judicial verdict of al-waṣiyyah is divided into five; these are:
i. Compulsory bequest which must be made by an indebted testator to pay off his debt or to return legacies to
the rightful owner
ii. Forbidden bequest such as making a request for people to wail after his death
iii. Recommendatory bequest such as the bequest made for the poor relatives
iv. Detestable bequest such as a bequest made by someone who possess meagre property in the midst of his
heirs
v. Acceptable bequest is a bequest made without any issues raised above.[48]

It’s clear from the fore-going that all the Sūnni Schools unanimously agreed on some form of judicial
pronouncements on al-waṣiyyah classification which is recommendatory, compulsory, detestable, forbidden and
acceptable except that they gave some different instances under each classification.

D. Bequest for Reciting the Qur’ān on the testator’s grave

The Hanafīs opined that making a bequest for the recitation of the Qur’an on the grave of the testator
or in his house is null and void (bātilatun) under Islamic law;[49] and if deceased wrote a will requesting the

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 Al-waṣiyyah according to the Four Sūnni Schools: A Concise Analysis.

spending of part of his property for the recitation of the Qur’ān on his grave such bequest would not be
actualised.[50] The Māliki School approved the wishes of someone who wrote a bequest requesting the recitation
of the Qur’ān on his grave equating the action with the bequest for performing Hajj except a revocable bequest
of someone to perform Salāt (Canonical Prayer) or observe fasting on his behalf which are viewed bātilatun.[51]
The Shāfi‘īSchool also approved the bequest for the recitation of the Qur’ān on the grave believing that the
reward of such act will be accrued to the dead testator;[52] while the Hanbali Scholars also affirmatively
corroborated the Shāfi‘ī and Māliki Schools’ standings on the ground that such act is a beneficial acts of
kurbatun(Supplication)to Allah for the benefit of the deceased testator.[53]

E. Bequest for the performance of Ibādāt (acts of worship) such as Ḥajj

The Hanafi School vehemently proclaimed as recommendatory the act of writing a bequest for
engaging in act of worship on behalf of the deceased Muslim like requesting the legatee or heirs to perform Hajj
on his behalf. They also opined that if the testator aimed for Hajj and died on his way, the legatee has the right
to complete his pilgrimage either from where he died or from his own native town.[54] The Māliki School
believed that it is legally accepted for the legatee to actualise the bequest of the testator in performing Hajj on
his behalf ;[55]while the Shāfi‘ī Scholars also accepted such pronouncement whether the Hajj is a compulsory
one or supererogatory (Umrah).[56] The Hanbali School also accepted such verdict of actualising the bequest of
the testator in performing Hajj on his behalf.[57]

F. Making Bequest for other Issues

The Hanafi Scholars declared as null and void a bequest requesting the legatee to preserve, decorate
and erect tomb on his grave.[58] They also negate a bequest requesting the legatee to bury the testator in his
room except if such room is the maqbara (graveyard ) of the Muslims.[59] On the other hand, Māliki School
rejects the bequest for wailing after the demise of the testator or for drumming qubbah (Drum) on his grave;[60]
while the Shāfi‘ī Scholars believed that a Muslim can write a bequest for the maintenance (‘imārah) of the
mosque from his estate by engaging a custodian for such purpose and be paying his wages from the asset he
left behind.[61] Lastly, the Hanbali Scholars agreed that writing a bequest stipulating a charity for the needy is
more reward able than engaging in supererogatory pilgrimage to Makkah.

G. Making Bequest for Selected People among Neighbours and Relatives

The Four Sūnni Schools unanimously agreed that it is lawful to make a bequest for neighbours and
relatives who are non-heirs.[62]However, the concept of who the neighbours and relatives should be has
generated divergent opinions among the scholars of the Schools. The Hanafi Scholars believed that those
neighbours must be the neighbours whose houses are closely joined with the house of the testator right, left or
behind. They can be given equal bequest either they are Muslims or ahl al-Dhimmi, men or women.[63]They
also opined that a testator can make a reasonable bequest for his in-laws who are his Muhārimīn
(unmarriageable persons). These include the fathers-in law, brothers and sister’s in-law, uncle’s in-law, brothers
and sister’s in-law. It can also be given to all Muhārimīn among his fathers’ wives, his paternal and maternal
uncles and other related relatives.[64 ]The Maliki Scholars also opined that the closed relatives can be given the
bequest among those living in any angle to the testator’s house (back, front, right, left, up and down) and those
adjacent neighbours. They however gave a verdict that if a man pronounced a bequest for his neighbours,
families, and kindred (Dhawul al-Arhām) and did the same for his paternal relatives who are non-heirs, his
bequest for them would be upheld while the maternal relatives would be exempted.[65] In their own
pronouncement, the Shāfi‘ī Scholars believe that the neighbours to the testator comprises forty houses from all
four angles (front, back , right and left); that is, hundred and sixty (160) houses. The bequest can be made for
them house by house and then occupants by occupants. [66] The Hanbali Scholars also pronounced that the
neighbours under Islamic law entails forty houses from all angles and if a testator makes a bequest for them, the
bequest would be given to all occupants of these houses as legatees.[67] They also believed that a bequest can be
made for the eight people pronounced by the Qur’ān as the recipient of Zakat as entails in Q9:60. This, as they
opined is not going to be made a Zakāt but a charity given to them.[68]

H. Al-waṣiyyah Maximum Bequethal of one-third, more or less.

It has to be mentioned at this juncture that no bequest is allowed under Islamic law to exceed one-third
of the whole estate. In one Hadīth reported by Abu Dardāi, the Prophet (Peace and Blessing upon him) was
quoted to have said:
Allah granted you a third of your wealth at the time of your demise to increase your
good deeds” [69]
It’s a concrete verdict under Islamic law that no bequest is allowed to exceed one-third in order not to
prejudice the rights of the legitimate heirs, However, the making of bequest for specific persons in the region of

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 Al-waṣiyyah according to the Four Sūnni Schools: A Concise Analysis.

maximum quota of one-third or more or less, the four Sūnni Schools have divergent views on its devolution.
The Hanafi Scholars opined that if a testator made a bequest of one-third for a particular person (MR. A) and
another one-third for other person (MR.B) and knowing fully to him the waṣiyyah must not exceed one-third,
the two legatees (MR.A and B) would jointly share one-third of the whole estate as waṣiyyah in which each
would be given one-sixth (1/6) each. [70] They further unanimously legislated that if he bequeathed one-third of
his estate to someone (MR.A) and one-sixth for other (MR. B), the bequest would be made into third of one-
third (athlāthan) in which MR. A( who was give 1/3) would take two parts while MR.B (who was given 1/6)
would take a part .[71]
Furthermore, Māliki Scholars opined that a bequest made for two different persons would be executed
as wished by the testator on certain conditions. These are:

i. The bequeathed property must be of a kind, not a different property from one another.
ii. The two bequests must be from two different pronouncements but at the same level.
iii. The two bequests must be of a kind but can be of different quantity, be it little or more, such as bequeathing
someone with 10 Dinnars and other with 5 Dinnars or vice-versa. They opined that the formula of a third
of one-third would also be used in given out the waṣiyyah to the two legatees as upheld previously by the
Hanafīs. [72]

On their part, the Shāfi‘ī Scholars agreed that if a man bequeathed different people what exceeded one-
third of his estate , the legatees would be obliged by the law to share only one-third of the estate as bequest; [73]
while the scholars of Hanbali School opined that if a man bequeathed all his properties for someone and half of
it at the same time for others which has exceeded the whole estate , the estate would be shared among them on
the basis of third of one-third in which the first legatee would be given half of one-third while the residue of the
bequest would be given to the second legatee. They concluded that any bequest made which has no proportion
in the estate (that is, exceed whole estate or exceed one- third), the legatees would be given nothing as
bequest.[74]

I. The Bequest or Will executor

The Will executor is someone willingly chosen by the testator while alive to oversee the devolution of his
bequest after his death. He is expected legally to oversee the will execution and perform the exercise uprightly
with fear of Allah as enshrined in (Q4:9). [75] On the criteria to be possessed by a will executor, there are
divergent opinions among the four schools. The Hanafīs enlisted such qualities as:
i. Al-Bulūqh (Maturity)
ii. He must be a Muslim. They also upheld a view that the judgement of a non-Muslim would be accepted if he
embraced Islam after the death of the testator and before the execution of the bequest
iii. He must be Just (‘ādil)
iv. He must be trustworthy
v. He must be capable of executing the bequest as stipulated by the testator.[76]

According to them, if a will executor merited all these qualities, the judge (al-Qādi) has no judicial
power to remove him except when defaulted. [77] They also opined that when two personalities are chosen as will
executors, it is illegal for one of them to execute the will in the absence of other except with his permission in
respect of his unavoidable absence or illness. If one of the will executor died before the execution of the bequest
but had permitted the other on his sickbed verbally or through valid written document (of permission), he (the
living executor) has the judicial power to execute the bequest as willed by the testator. [78]
In the view of Māliki Scholars, they outlined four qualities of a will executor. These are:
i. Al-Taklīf (Entrustment)
ii. Islam. He must be a Muslim
iii. Al-‘adālah. He must be upright and trustworthy and
iv. Al-kudrah (legal capability) He must be capable to execute the bequest without fear or favour as wished by
the testator.[79]

They also agreed that it is illegal for one of the two appointed will executors to execute the will
(testament) without prior permission from the other except in a situation where the testator stipulated that any
of the appointed will executor could devolve the bequest without the permission of the other.[80] The Māliki
Scholars concluded that if any of the two will-executors died or found defaulted in qualities, the judge is
empowered to adjudicate whether to contend with the execution of one of them or to appoints another will
executor to replace the dead or erring one by the court. [81] On their own separate pronouncement, the Shāfi‘ī
Scholars believed that its obligatory for a will executor to possess the following qualities:

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 Al-waṣiyyah according to the Four Sūnni Schools: A Concise Analysis.

i. He must be an upright person inwardly and outwardly

ii. He must possess capability to execute will
iii. He must be a free man
iv. He must be a Muslim whenever the bequest is made for Muslims
v. The will executor must not be a foe (enemy) to whom the bequest is made ( that is, the Legatee)
vi. He must not be a person of unknown character and
vii. He must be a matured and sensible person.[82]

They further opined that a blind (al-‘amah) and a dumb person (al-akhras) could be madeas a will-executor
once his gesticulation could be understood. [83]
The Hanbali School pronounced in their judgement that the will executor must be:
i. A Muslim and it is illegal for a Muslim to appoint a non-Muslim as a will-executor
ii. A matured person who has no traces of insanity
iii. A rightly guided person
iv. A just person even if he is blind.[84]

They also held a view that it is illegal for one of the two chosen will executors to execute the will
without the knowledge of the other except if specifically mentioned by the testator.[85] It must be noted that all
the four Sūnni School agreed that the will executor must be matured, sane, capable, alive at the time of making
bequest by the testator, healthy and must be a Muslim. They however had the divergent opinions on whether an
executor or two is enough, whether a non-Muslim can be a will executor for a Muslim and so on.

V. CONCLUSION
The institutionalisation of al-waṣiyyah preceded al-farā’id in Islam and it was legislated by Allah for
Muslims to give out of their wealth for non-heirs among their families, neighbours and relatives. The trend of
al-waṣiyyah later changed with the revelation of āyāt al-mawārith- inheritance verses- which made the waṣiyyah
discretionary and non-binding upon the legitimate heirs except as a gift with the consent of other heirs. The
opinions of the Four Sūnni Schools’s founders and Scholars on certain aspects of al-waṣiyyah varies greatly in
some area and were the same in some aspects as enumerated earlier in this concise work. The differences in
opinions of these Scholars not on al-wasiyyah alone as a micro-mechanism of inheritance in Islam but on other
religious verdicts were borne out of many reasons which include their divergent understanding of the revealed
verses and prophetic traditions which discussed the subject matter; or the variance in time, location and
materials availability. It’s therefore concluded that, the variance of opinions by the Scholars of the Four Sūnni
Schools as regard al-waṣiyyah on its definition, conditions, pillars, legality, types of bequest that can be made,
the bequest maximum quotas and the will executor is seen as ultimate flexibility and accommodating tendencies
that could only be found in Islamic law (Sharī‘ah) aimed at giving Muslims leverage of practicing a
fundamental tenet of their religion with ease and sense of purpose in order to be subservient adherents of Islam
and true followers of the Messenger.

NOTES AND REFERENCES

[1]. Hassan, S. The MuslimWorld in the 21st Century (Springer +Business Media B.V, 2012), 23.Downloaded
from www.googlescholars.com on 4th of February, 2017.
[2]. Al-Jibali, M. Inheritance Regulation and Exhortation, 2nd ed. (Al-Madinah: al-Kitaab and as-Sunah
Publication, 2005),3.
[3]. Zakiah, S. et al, “Towards Managing the Beneficiaries Rights Via Writing A Will” in Global Journal of
Management and Business Research, Vol.16, Issue 3, Version 1.0, 2016, 22-23.
[4]. See Abdul al-Rahman, Al-Jaziri, Kitāb al-Fiqh ‘alā al-Madhāhib al- arba‘, 5 volumes, Arabic Text,
(Beirut, Lebanon: Daar al-Kotob al-Ilmiyah, 2003/1424). However, this research work utilises Volume
three, Book of al-Wasiyyah, pages 277-312.
[5]. Ansari, M.F.R, The Qur’ānic Foundations and Structure of Muslim Society, Vol.I, ( Karachi, Pakistan:
World Federation of Islamic Missions, 1973),110-111
[6]. Muhammad, A. The Religion of Islam, Revised. ed. (Delhi, India: Taj Company, 1986),15.
[7]. Ambali, M.A. The Practice of Muslim Family Law, 2nd ed. (Zaria, Nigeria: Tamaza Publishers, 2003),3
[8]. Muneer, K.M and Muhammad, M.A, “The Shariah and Law: An Analysis” in International Journal of
Law, Government and Communication, Vol.2, Issue 5, Sept, 2017
[9]. Other widely accepted secondary sources include Ijtihād (Judicial Exertion), Al- ‘Urf (Custom)
Istihsān(Juristic Preference or Legal Discretion), Istislāh (Public Interest), Istishāb (Continuous
Companionship) For comprehensive explanation on these sources, see Doi, A.I, Shariah: The Islamic
Law, (London: Ta Ha Publishers, 1984), Muhammad, A. The Religion of Islam,……. 81-84, Neal,

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 Al-waṣiyyah according to the Four Sūnni Schools: A Concise Analysis.

Robinson, Islam: A Concise Introduction (Surrey, UK: Curzon Press, 1999),149 and Kamali, Muhammad
Hashim, Maqāsid al-Shariah, Ijtihad and civilizational Renewal (London: International Institute of
Islamic Thought, 2012)
[10]. For concise narration of biographies and jurisprudential works of these four sūnni schools’ founders, see
Doi, A.I, Shariah: The Islamic Law….., 85-112, Abu Ameenah, B, P, The Evolution of Fiqh, (The
Islamic Law and Madh-habs),Riyadh, International Islamic Publishing House, 2006, 87-118 and Hussain
A, The Islamic Law of Succession, 1st ed., (Riyadh: Darussalam Publisher, 2005), 31-34
[11]. Abu Ameenah, B, P, The Evolution of Fiqh, (The Islamic Law and Madh-habs)……,121
[12]. Muhammad Ibn Salih al-‘Uthaymeen, Differences of Opinion Amongst the Scholars, their Causes and
Our Position towards them, 2nded. transl. Abu Safwan Farid IbnAbdul wahid Ibn Haibatan ( Birmingham:
Al-Hidaayah Publishing and Distribution, 2007), 18-20
[13]. Ibid, 21-22
[14]. Ibid, 23-25
[15]. Ibid, 26-30
[16]. Ibid, 31-32
[17]. Ibid, 33-36
[18]. Ibid, 37-39
[19]. Abu Ameenah, B, P, The Evolution of Fiqh, (The Islamic Law and Madh-habs)……,121
[20]. Doi, A.I, Shariah: The Islamic Law….., 88. For more on the reasons for differences in Opinions among
scholars see Muhammad, Khalid Masud, “Ikhtilafal-Fuqaha’ : Diversity in Fiqh as a social
construction” in Wanted: Equality and Justice in Muslim Family,(n.d), downloaded from
www.googlescholars.com on 4th April,2017, Khalida Majid, “Iktilaf and Unity in Muslim Ummah :
Comparative Analysis”, in International Journal of Humanities and Social Science Invention, Vol.4,
Issue, 3, March, 2015, page 10-16, Ubayd bin Abdillah al-Jaabeery, Differences of Opinions among the
Salafis, transl. Abu Abdullah Nassar Hussain (Miraath Publication, n.d) downloaded from
www.googlescholars.com on 6th April, 2017.
[21]. Doi, A.I, Shariah: The Islamic Law….., 271
[22]. Haroon, M.G, Foundation Principles of Islamic Law of Inheritance, (Lagos: Jiyl-Qur’an Enterprises,
2005), 14
[23]. Al-Jibali M. Inheritance Regulation and Exhortation,……5-6
[24]. Ibid, 7-8
[25]. Majlis al-Ulama’ of South Africa, Kitabul-Meerath, 2 Volumes, Vol.1, (Port Elizabeth, Unknown
Publisher, n.d), 10
[26]. Al-Jibali, M, The Islamic Will and Testament, (Al-Madinah: al-Kitaab and as-Sunah Publication,
2005),10, downloaded from www.kallamullah.com on 17th June, 2017
[27]. Salisu, T.M, “Will-Making (Wasiyyah) in Islam: A Juristic Exposition”.In Jurnal Syariah /Shariah
Journal, Vol.24, No1. 2016 , 159
[28]. Mohd, Zamro Mudah, “Instrument of Hibah and Wills : Analysis of the Regulation and Application in
Malaysia” page 15-16, a Paper presented at the Hibah and Farai’d National Convention, organized by
JAKIM on 7th August, 2008 at Multipurpose hall, the Wilayah Mosque, Kuala Lumpur, Malaysia,
downloaded from www.googlesholar.com
[29]. Al-Jibali, M, The Islamic Will and Testament,….16
[30]. Sultan Alam Chowdury, A.B.M, “The Problem of Representation in the Muslim Law of Inheritance” in
Islamic Studies, Islamabad 3:3, 1964, 386-387, accessed at Muhammad Hamidu Library, IIU, Islamabad.
www.iri.iiu.edu.pk
[31]. Omar, T.M, “Shari’ah-Compliant Wills: Principles, Recognition and Enforcement, in New York Law
School Review, Vo. 57, Issue 13, 2013, 262.
[32]. Omar, T.M, “Sharī‘ah-Complaint Wills: Principles……262, See also Nik Fadzrina, N.K and Shaikh
Hamzah, A.R, “The Importance of Rules of Inheritance (Farai’d) in a Muslim’s Society Estate Planning”
in Journal of Islamic Banking and Finance, Vol.31, No1, Jan-March, 2014, 25-27. See also Ambali, The
Practice of Muslim Family Law….,296 -297.
[33]. The revelation of Al-Mirath Verses (Q4:11, 12 and 176) has abrogated the verses of Al-Wasiyyah for
Parents and Wives since they are among the Qur’ānic Sharers or Heirs who are the “Ashāb al-Furúd”-
The Fixed Sharers or Heirs.
[34]. For comprehensive discourse on Al-Waṣiyyah, See Hussain, A, The IslamicLaw of Wills, (n.d), accessible
at www.islaam.com/Article.aspx?id=527), Salisu, T.M, “Will-Making (Wasiyyah)……, 157-180,Zakiah,
S, et al, “Towards Managing the Beneficiaries Rights Via Writing a Will, in Global Journal of
Management and Business Research, Vol. 16, Issue 3, Version 1.0, 2016 ,23-29, Doi, A.I. Shariah: The

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 Al-waṣiyyah according to the Four Sūnni Schools: A Concise Analysis.

Islamic Law…… 329-334, Ambali , M.A. The Practice of Muslim Family Law, 295-301, Hussain, A,
The Islamic Law of Succession ….., 384-405, Al-Jibali,M. The Islamic Will and Testament…..93-114
[35]. Abd al-Rahman al-Jaziīrī, Fiqh ‘alaMadhāhib al-‘arba’- Arabic Text, Vol.3( Beirut, Lebanon: Daar al-
Kutb al-‘ilmiyyah,2003), 277
[36]. Ibid,
[37]. Ibid,278
[38]. Ibid
[39]. Ibid
[40]. Ibid
[41]. Ibid, 278-281
[42]. Ibid, 282-284
[43]. Ibid, 285-286
[44]. Ibid, 286-287
[45]. Ibid, 287-288
[46]. Ibid, 288-289
[47]. Ibid,289
[48]. Ibid
[49]. Ibid, 290
[50]. Ibid
[51]. Ibid, 291
[52]. Ibid,293
[53]. Ibid, 294
[54]. Ibid,290
[55]. Ibid,291
[56]. Ibid,293
[57]. Ibid,294
[58]. Ibid,291
[59]. Ibid
[60]. Ibid
[61]. Ibid,294,
[62]. Ibid,295
[63]. Ibid,295, and see also Al-Jibali, M, The Islamic Will and Testament,….14
[64]. Abd al-Rahman al-Jaziīrī, Fiqh ‘alaMadhāhib al-‘arba’…….295
[65]. Ibid,300
[66]. Ibid, 301
[67]. Ibid, 303
[68]. Ibid, 304
[69]. See Al-Shawkani, M.A, Nayl Awtar Sharh Muntaqi al-Akhbar, Part 6, Hadith No 2515
[70]. Abd al-Rahman al-Jaziīrī, Fiqh ‘alaMadhāhib al-‘arba’…….304
[71]. Ibid
[72]. Ibid ,308
[73]. Ibid, 309
[74]. Ibid
[75]. Al-Jibali M. Inheritance Regulation and Exhortation,……24
[76]. Abd al-Rahman al-Jaziīrī, Fiqh ‘alaMadhāhib al-‘arba’…….310
[77]. Ibid
[78]. Ibid
[79]. Ibid
[80]. Ibid
[81]. Ibid
[82]. Ibid
[83]. Ibid
[84]. Ibid
[85]. Ibid

Busari, Jamiu Muhammad "Al-waṣiyyah according to the Four Sūnni Schools: A Concise
Analysis. "IOSR Journal of Humanities And Social Science (IOSR-JHSS), vol. 23, no. 2,
2018, pp. 52-61.
DOI: 10.9790/0837-2302115261 www.iosrjournals.org 61 | Page

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