Question:
How much can a property be bequeathed in a will?
Answer:
Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions, and all those who follow his footsteps until the Final day.
The practice of leaving a will or bequeathing one’s property has been in existence for a long time. Usually, a will is left is related to wealth or property left by a person in a will. It is permissible for the Muslim ummah to leave a will on certain conditions as set by the shariah of Islam.
A will according to the 4th Edition of Kamus Dewan means a final wish of a dying person (regarding his property, wealth or others) or it is also defined as his final wish. [1]
According to Sayyid Sabiq, a will is defined as a gift a person gives physically, debt or benefit so that it is owned by the person in the will as a gift after the death of the person making the will. [2]
Allah SWT states:
مِنْ بَعْدِ وَصِيَّةٍ يُوصِي بِهَا أَوْ دَيْنٍ
“After any bequest he [may have] made or debt.” [3]
Through this verse, Allah SWT explains that the division of the inheritance should be made after the debt and will of the deceased is settled. Between settling the deceased’s debts and fulfilling the deceased’s bequeaths, settling the debts is prioritized. This is based on the hadith narrated from Ali RA, he said:
إِنَّكُمْ تَقْرَءُونَ هَذِهِ الآيَةَ: {مِنْ بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَا أَوْ دَيْنٍ} «وَإِنَّ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ قَضَى بِالدَّيْنِ قَبْلَ الوَصِيَّةِ
“You recite this verse, “After a legacy you bequeathed or a debt (Al-Qur’an 4:12),’’ but God’s Messenger decided that a debt should be discharged before a legacy.” [4]
However, Dr Wahbah Zuhaili stated that among the reasons Allah SWT stated legacy first before debt is because it is an encouragement and commandment to fulfil all of the will and the prohibition against going against it. [5]
Syeikh Muhammad al-Zuhaili stated in his book al-Mu’tamad [6]. In regards to the matter of will, there are 4 requisites one should fulfil, which are:
- The person leaving the will
- The recipients of the bequeath
- Sighah (speech)
The management of inheritance should follow the order as set by syarak:
- The management of the deceased
- Debt
- Will / bequeath
- Faraid
Hence, from the property of the deceased, the obligatory management of the deceased is made. Then, his debts are settled if he had any. Debt here is divided into two, the debt towards other people and the debt towards Allah SWT. The examples of debt towards Allah SWT are zakat, fast, hajj, fidyah, qada’, kaffarah and obligatory nazar. In madhhab al-Syafie, the debt towards Allah SWT is prioritized to be settled. Rasullullah PBUH said:
فَدَيْنُ اللهِ أَحَقُّ أَنْ يُقْضَى
“So, the debt due to Allah is the one which most deserves to be paid.” [7]
Next, the rest of the inheritance is managed according to the will. The property that can be bequeathed is just 1/3 from the whole inheritance, hence only 1/3 of the inheritance of the deceased can be channelled to mosques or others. This is as described in a question asked by Saad bin Abi Waqas RA, he asked Rasullullah PBUH:
يا رَسولَ اللَّهِ، أُوصِي بمالِي كُلِّهِ؟ قالَ: لا، قُلتُ: فالشَّطْرُ، قالَ: لا، قُلتُ: الثُّلُثُ، قالَ: فالثُّلُثُ، والثُّلُثُ كَثِيرٌ، إنَّكَ أنْ تَدَعَ ورَثَتَكَ أغْنِياءَ خَيْرٌ مِن أنْ تَدَعَهُمْ عالَةً يَتَكَفَّفُونَ النَّاسَ في أيْدِيهِمْ
“O Messenger of Allah, shall I bequeath all my money?’ He said: ‘No.’ I said: ‘One-half?’ He said: ‘No.’ I said: ‘One-third?’ He said: ‘(Bequeath) one-third, and one-third is a lot. If you leave your heirs independent of means, that is better than if you leave them poor and holding out their hands to people.'” [8]
According to the above question and arguments presented, we state that Islam has set a condition that only 1/3 of the whole inheritance can be bequeathed and the remaining or 2/3 of it are given to the heirs following the guidelines set by syara’. May Allah SWT grants us all understanding in this religion and make us from among those who practise it. Amin.
Wallahu a’lam.
[1] See: https://prpm.dbp.gov.my/cari1?keyword=wasiat
[2] See al-Fiqh al-Sunnah, 3/583
[4] Narrated by Tirmizi (2094)
[5] See Tafsir al-Munir, 4/276
[6] See al-Mu’tamad fi al-Fiqh al-Syafi’I, 4/601-606]
[7] Narrated by al-Bukhari (1953) and Muslim (1148)
[8] Narrated by al-Bukhari (2742)
