The Laws Of Inheritance In Islam - 1.0

FIQH: AHLUS SUNNAH WAL JAMA'AH - TRADITIONAL SHAFI'I SCHOOL OF JURISPRUDENCE


Bequests (Wasiyyah)

The difference between bequests (wasiyyah) and estate division (irth) - is that a bequest is the act of a living person disposing of his own property, even if it is to be implemented after his death, while estate division occurs after his death according to the Qur'anic Rules of Inheritance.

Because a bequest is the act of a living person with his own money, it is legally valid for a Muslim to bequeath up to a third of his property, even to a non-Muslim. Such rulings is similarly valid for a non-Muslim to bequeath his property to a Muslim.

Imam Nawawi RA has said about this:

"A bequest is legally valid from any legally responsible free person, even if non-Muslim." (as taken from the treatise - Mughni Al-Muhtaj Ila Ma'rifa Ma'ani Alfaz Al-Minhaj)

However, we must understand that it is invalid and Unlawful for a non-Muslim to inherit property through estate division from a Muslim, or vice versa.

The determining factor in the permissibiity of a Muslim and non-Muslim inheriting from each other is whether the property comes by way of a bequest (wasiyyah) made by the deceased before his death, in which case it is permissible, or whether it comes by way of estate division (irth) made after the deceased's death according to the Qur'anic Rules of Inheritance, in which case the difference between their respective religions prevents it.

The scriptural basis for the validity of bequests (wasiyyah), which takes ruling prior to any consensus of the Ulama, is the word of Allah SWT in the Qur'an:

"...after any bequest which has been made, and after any debts." (Surah 4: Ayat 12)


For ease of discussion, we will label individuals accordingly:

X = Al-Musi - i.e. the person who has made provision in his/her will for Z to receive the bequest (wasiyyah).

Y = Al-Wassiy - i.e. the executor appointed by X to make sure this is done.

Z = Al-Musa Lahu - i.e. the recipient of the bequest.

A bequest made by X is valid if he is legally responsible (mukallaf), even if he is a spendthrift.