Provisions that should be observed before death (2)

Provisions that should be observed before death because of its connection to

Firstly: Inheritance

Defining will.

Definition of a will  in the language: It is taken from “wasiyyatu”, giving an inheritor some permissible actions during his life to continue after his death. [1]

The will in the terms of jurists: It is the order to act after the death of the testator,  will or in another statement: To donate money after death.

The ruling on wills.

Ibn Qudamah (May Allah bless him) reported the consensus on the permissibility of a will. He said: “Scholars have agreed in every time and place to the permissibility of the will.[2] The will can be desirable, obligatory, reprehensible, or forbidden.
- The will that is desirable: that is the will of something from his wealth that is given for the sake of goodness, so that its reward would reach him after death. This will be acceptable is a deceased has a lot of money and his heirs are rich. In this case, it is permissible by the lawgiver to open the door for increasing righteous deeds after death provided that the will should not exceed one third of the wealth.

The proof to the permissibility of the will is the Hadith of Ibn Omar (may Allah be pleased with him) that the Prophet (peace be upon him) said: “It is the duty of a Muslim who has something which is to be given as a will not to have it for two nights without having his will written down regarding it.”[3]

• A benefit: Mentioning the two nights in the Hadith is not limited to those nights but it means a short time should not pass except that his will is written.

-The obligatory will is the will of fulfilling obligatory duties which he has to do or missed whether these duties are due to Allah such as Zakah he did not pay, an obligatory Hajj that he missed, an expiation or other things that have been missed.

Or these rights were for people such as debt and rendering trusts back to their owners; such a will is obligatory not a Sunnah because many rights are attached with it, particulary when no one knows these rights. The general rule states: [Essential procedures to fulfill a duty becomes obligatory too].

• A benefit: The will is compulsory for those near relatives who have no share of inheritance while they are poor, in this case the will is obligatory to those relatives..

The proof to that is the following Ayah:

{كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ إِنْ تَرَكَ خَيْرًا الْوَصِيَّةُ لِلْوَالِدَيْنِ وَالْأَقْرَبِينَ بِالْمَعْرُوفِ حَقًّا عَلَى الْمُتَّقِينَ}

“Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a will for the parents and near relatives according to what is acceptable - a duty upon the righteous.” [Al Baqara: 180].

His words: [prescribed for you] meaning: obligatory upon you. His words: [If he leaves wealth] meaning: Left a lot of wealth. Then it is compulsory that he must bequeath for his parents if they are forbidden from receiving inheritance then the closer. The assembly of the Mufasireen (those who comment on the Tafseer, may Allah be pleased with them) that this verse has been abrogated and the solution: to not implement it because of the absence of the correct proof of the abrogation (of the ruling). [4]

-The will is reprehensible: If the wealth of the legator is little and the heirs are poor; in this case a legator confined the condition of heirs and disagreed the Prophet's saying to Sa`d ibn Malik (may Allah be pleased with him) after he wanted to bequeath half of his wealth. The Prophet (peace be upon him) forbade him and said to him: “O Sa`d! Give 1/3 (in charity) and even 1/3 is too much. No doubt, it is better to leave your children rich than to leave them poor, reduced to begging from others.”[5]

-The will is forbidden in two cases:

Firstly: If he has increased in his will over a third of his wealth because of prohibition to do so in the previous Hadith of Sa`d (may Allah be pleased with him), unless the inheritors agree, because what is over a third is their sole right. If they give up that right, it is permissible.

Secondly: When a legator bequeathes to an heir because of the reported prohibition. Anas ibn Malik (may Allah be pleased with him) said that the Prophet (peace be upon him) said: “There is no will for an heir.”[6] There is no will for an heir according to the consensus of scholars. [7]
There is one exception: If all heirs approve that the will exceeds one third or bequeathing to an heir, the will shall be permissible because a due right for them which they give up. However, it is not permissible for a legato to do so even if he knows that the heirs shall approve it because of the resulting harms that may erupt thereafter..