37. Wills and Testaments

Malik related to me from Nafi from Abdullah ibn Umar that theMessenger of Allah, may Allah bless him and grant him peace, said, "Itis the duty of a muslim man who has something to be given as a bequestnot to spend two nights without writing a will about it." Malik said, "The generally agreed-on way of doing things in ourcommunity is that when the testator writes something in health orillness as a bequest, and it has freeing slaves or things other thanthat in it, he can alter it in any way he chooses, until he is on hisdeathbed. If he prefers to abandon a bequest or change it, he can doso unless he has made a slave mudabbar (to be freed after his death).If he has made him mudabbar, there is no way to change what he hasmade mudabbar. He is allowed to change his testament because theMessenger of Allah, may Allah bless him and grant him peace, said, "Itis the duty of a muslim man who has something to be given as a bequestnot to spend two nights without writing a will about it." Malik explained, "Had the testator not been able to change his willnor what was mentioned in it about freeing slaves, each testator mightwithhold making bequests from his property, whether in freeing slavesor other than it. A man gives a bequest in his health and in histravelling." (i.e. he does not wait till his death bed ) . Malik summed up, "The way of doing things in our community about whichthere is no dispute is that he can change whatever he likes of thatexcept for the mudabbar." Malik related to me from Abdullah ibn Abi Bakr ibn Hazm that Amribn Sulaym az-Zuraqi informed his father that it had been said to Umaribn al-Khattab, "There is here an adolescent boy who has not yetreached puberty. He is from the Ghassan tribe and his heir is in ash-Sham. He has property. Here he only has the daughter of one of hispaternal uncles." Umar ibn al-Khattab instructed, "Let him leave her abequest." He willed her a property called the well of Jusham. Malik added, "That property was sold for 30,000 dirhams, and thedaughter of the paternal uncle to whom he willed it was the mother ofAmr ibn Sulaym az-Zuraqi." Malik related to me from Yahya ibn Said from Abu Bakr ibn Hazmthat a boy from Ghassan was dying in Madina while his heir was inSyria. That was mentioned to Umar ibn al-Khattab. It was said to him,"So-and-so is dying. Shall he make a bequest?" He said, "Let him makea bequest." Yahya ibn Said said that Abu Bakr had said, "Hewas a boy of ten or twelve years." Yahya said, "He willed the well ofJusham, and his people sold it for 30,000 dirhams." Yahyasaid that he heard Malik say, "The generally agreed-on way of doingthings in our community is that a simpleton, an idiot, or a lunaticwho recovers at times, can make wills if they have enough of theirwits about them to recognise what they will. Someone who has notenough wits to recognise what he wills, and is overcome in hisintellect, cannot make a bequest." Malik related to me from Ibn Shihab from Amir ibn Sad ibn AbiWaqqas that his father said, "The Messenger of Allah, may Allah blesshim and grant him peace, came to me to treat me for a pain whichbecame hard to bear in the year of the farewell hajj. I said,'Messenger of Allah, you can see how far the pain has reached me. Ihave property and only my daughter inherits from me. Shall I give twothirds of my property as sadaqa?' The Messenger of Allah, may Allahbless him and grant him peace, said, 'No.' I said, 'Half?' He said,'No.' Then the Messenger of Allah, may Allah bless him and grant himpeace, said, 'A third, and a third is a lot. Leaving your heirs richis better than leaving them poor to beg from people. You never spendanything on maintenance desiring the Face of Allah by it, but that youare rewarded for it, even what you appoint for your wife.' Sad said,'Messenger of Allah, will I be left here in Makka after my companionshave departed for Madina?' The Messenger of Allah, may Allah bless himand grant him peace, said, 'If you are left behind, and do sound deedsyou will increase your degree and elevation by them. Perhaps you willbe left behind so that some people may benefit by you and others maybe harmed by you. O Allah! complete their hijra for my companions, anddo not turn them back on their heels. The unfortunate one is Said ibnKhawla.' The Messenger of Allah, may Allah bless him and grant himpeace, was distressed on his account for he had died at Makka." Yahya said that he heard Malik speak about a man who willed athird of his property to a man and said as well, "My slave will serveso-and-so (another man) for as long as he lives, then he is free,"then that was looked into, and the slave was found to be a third ofthe property of the deceased. Malik said, "The service of the slave isevaluated. Then the two of them divide it between them. The one whowas willed a third takes his third, as a share, and the one who waswilled the service of the slave takes what was evaluated for him ofthe slave's service. Each of them takes, from the service of the slaveor from his wage if he has a wage, according to his share. If the onewho was given the service of the slave for as long as he lived dies,then the slave is freed." Yahya said that he heard Malikspeak about someone who willed his third and said "So-and-so has such-and-such, and so-and-so has such-and-such," naming some of hisproperty, and his heirs protested that it was more than a third."Malik said, "The heirs then have an option between giving thebeneficiaries their full bequests and taking the rest of the propertyof the deceased, or between dividing among the beneficiaries the thirdof the property of the deceased and surrendering to them their third.If they wish, their rights in it reach as far as they reach." Yahya said that he heard Malik say, "The best of what I haveheard about the testament of a pregnant woman and about whatsettlements she is permitted in her property is that the pregnantwoman is like the sick person. When the illness is light, and one doesnot fear for the sick person, he does with his property what he likes.If the illness is such that his life is feared for, he can onlydispose of a third of his estate." He said, "It is the samewith a woman who is pregnant. The beginning of pregnancy is good newsand joy. It is not illness and no fear because Allah the Blessed, theExalted, said in His Book, 'We gave her good news of Ishaq and afterIshaq, Yaqub.' (Sura ll ayat 71). And He said, 'She bore a lightburden and passed by with it, but when she became heavy, they calledupon Allah, their Lord, "If you give us a good-doing son, we will beamong the thankful." '(Sura 7 ayat 189). "When a pregnantwoman becomes heavy, she is only permitted to dispose of a third ofher estate. The beginning of this restriction is after six months.Allah, the Blessed, the Exalted, said in His Book, 'Mothers suckletheir children for two complete years.' And He said, 'his bearing andweaning are thirty months.' (Sura 2 ayat 233). "When sixmonths have passed for the pregnant woman from the day she conceived,she is only permitted to dispose of a third of her property." Yahya said that he heard Malik say, "A man who is advancing in the rowfor battle, can only dispose of a third of his property. He is in thesame position as a pregnant woman or an ill person who is feared for,as long as he is in that situation." Yahya said that he heard Malik say, "This ayat is abrogated. Itis the word of Allah, the Blessed, the Exalted, 'If he leaves goods,the testament is for parents and kinsmen.' What came down about thedivision of the fixed shares of inheritance in the Book of Allah, theMighty, the Exalted, abrogated it." Yahya said that he heardMalik say, "The established sunna with us, in which there is nodispute, is that it is not permitted for a testator to make a bequest(in addition to the fixed share) in favour of an heir, unless theother heirs permit him. If some of them permit him and others refuse,he is allowed to diminish the share of those who have given theirpermission. Those who refuse take their full share from theinheritance. Yahya said that he heard Malik speak about aninvalid who made a bequest and asked his heirs to give him permissionto make a bequest when he was so ill that he only had command of athird of his property, and they gave him permission to leave some ofhis heirs more than his third. Malik said, "They cannot revoke that.Had they been permitted to do so, every heir would have done that, andthen, when the testator died, they would take that for themselves andprevent him from bequeathing his third and what was permitted to himwith respect to his property." Malik said, "If he askspermission of his heirs to grant a bequest to an heir while he is welland they give him permission, that is not binding on them. The heirscan rescind that if they wish. That is because when a man is well, heis entitled to all his property and can do what he wishes with it. Ifhe wishes, he can spend all of it. He can spend it and give sadaqawith it or give it to whomever he likes. His asking permission of hisheirs is permitted for the heirs, when they give him permission whenauthority over all his property is closed off from him and nothingoutside of the third is permitted to him, and when they are moreentitled to the two-thirds of his property than he is himself. That iswhen their permission becomes relevant. If he asks one of the heirs togive his inheritance to him when he is dying, and the heir agrees andthen the dying man does not dispose of it at all, it is returned tothe one who gave it unless the deceased said to him, 'So-and-so - (oneof his heirs) - is weak, and I would like you to give him yourinheritance.' So he gives it to him. That is permitted when thedeceased specified it for him." Malik said, "When a man givesthe dying man free use of his share of the inheritance, and the dyingman distributes some of it and some remains, it is returned to thegiver, after the man has died." Yahya said that he heardMalik speak about someone who made a bequest and mentioned that he hadgiven one of his heirs something which he had not taken possession of,so the heirs refused to permit that. Malik said, "That gift returns tothe heirs as inheritance according to the Book of Allah because thedeceased did not mean that to be taken out of the third and the heirsdo not have a portion in the third (which the dying man is allowed tobequeath)." Malik said from Hisham ibn Urwa from his father that aneffeminate man was with Umm Salama, the wife of the Prophet, may Allahbless him and grant him peace. He said to Abdullah ibn Abi Umayyawhile the Messenger of Allah, may Allah bless him and grant him peace,was listening. "Abdullah! If Allah grants you victory over Ta'iftomorrow, I will lead you to the daughter of Ghailan. She has fourfolds on her front and eight folds on her back." The Messenger ofAllah, may Allah bless him and grant him peace, said, "This sort ofman should not enter freely with you." (It was customary to allow menwith no sexual inclination to enter freely where there were women). Malik related to me that Yahya ibn Said said that he heard al-Qasim ibn Muhammad say, "A woman of the Ansar was married to Umar ibnal-Khattab. She bore Asim ibn Umar to him, and then he separated fromher. Umar came to Quba and found his son Asim playing in the courtyardof the mosque. He took him by the arm and placed him before him on hismount. The grandmother of the child saw him and argued with Umar aboutthe child so they went to Abu Bakr as-Siddiq. Umar said, 'My son.' Thewoman said, 'My son.' Abu Bakr said, 'Do not interfere between a childand its mother.' Umar did not repeat his words." Yahya saidthat he heard Malik say, "This is what I would have done in thatsituation." Yahya said that he heard Malik speak about a man who bought goods- animals or clothes or wares, and the sale was found not to bepermitted so it was revoked and the one who had taken the goods wasordered to return the owner his goods. Malik said, "The owner of thegoods only has their value on the day they were taken from him, andnot on the day they are returned to him. That is because the man isliable for them from the day he took them and whatever loss is in themafter that is against him. For that reason, their increase and growthare also his. A man may take the goods at a time when they are sellingwell and are in demand, and then have to return them at a time whenthey have fallen in price and no one wants them. For instance, the manmay take the goods from the other man, and sell them for ten dinars orkeep them while their price is that. Then he may have to return themwhile their price is only a dinar. He should not go off with ninedinars from the man's property. Or perhaps they are taken by the man,and he sells them for a dinar or keeps them, while their price is onlya dinar, then he has to return them, and their value on the day hereturns them is ten dinars. The one who took them does not have to paynine dinars from his property to the owner. He is only obliged to paythe value of what he took possession of on the day it was taken ." He said, "Part of what clarifies this is that when a thiefsteals goods, only their price on the day he stole them is looked at.If cutting off the hand is necessary because of it, that is done. Ifthe cutting off is delayed, either because the thief is imprisoneduntil his situation is examined or he flees and then is caught, thedelay of the cutting off of the hand does not make the hadd, which wasobliged for him on the day he stole, fall from him even if those goodsbecome cheap after that. Nor does delay oblige cutting off the hand ifit was not obliged on the day he took those goods, even if they becomeexpensive after that." Malik related to me from Yahya ibn Said that Abu'd-Darda wrote toSalman al-Farsi, "Come immediately to the holy land." Salman wroteback to him, "Land does not make anyone holy. Man's deeds make himholy. I have heard that you were put up as a doctor to treat and curepeople. If you are innocent, then may you have delight! If you are aquack, then beware lest you kill a man and enter the Fire!" WhenAbu'd-Darda judged between two men, and they turned from him to go, hewould look at them and say, "Come back to me, and tell me your storyagain. A quack! By Allah!" Yahya said that he heard Maliksay, "If someone makes use of a slave, without permission of itsmaster, in anything important to him, whose like has a fee, he isliable for what befalls the slave if anything befalls him. If theslave is safe and his master asks for his wage for what he has done,that is the master's right. This is what is done in our community." Yahya said that he heard Malik say about a slave who is partfree and part enslaved, "His property is suspended in his hand and hecannot begin anything with it. He eats from it and clothes himself inan approved fashion. If he dies, his property belongs to the one towhom he is in slavery." Yahya said that he heard Malik say,"The way of doing things in our community is that a parent can takehis child to account for what he spends on him from the day the childhas property, cash or goods, if the parent wants that." Malik related to me from Umar ibn Abd ar-Rahman ibn Dalaf al-Muzani from his father that a man from the Juhayna tribe used to buycamels before people set out for hajj and sell them at a higher price.Then he travelled quickly and used to arrive in Makka before theothers who set out for hajj. He went bankrupt and his situation wasput before Umar ibn al-Khattab, who said, "O People! al-Usayfi, al-Usayfi of the Juhayna, was satisfied with his deen and his trustbecause it was said of him that he arrived before the others on hajj.He used to incur debts which he was not careful to repay, so all ofhis property has been eaten up by it. Whoever has a debt against him,let him come to us tomorrow and we will divide his property betweenhis creditors. Beware of debts! Their beginning is a worry and theirend is destitution. " Yahya said that he heard Malik say, "The sunna with us about thecrime of slaves is that the hand is not cut off for any harm that aslave causes a man, or something he pilfers, or something guardedwhich he steals, or hanging dates he cuts down or ruins, or steals.That is against the slave's person and does not exceed the price ofthe slave whether it is little or much. If his master wishes to givethe value of what the slave took or ruined, or pay the blood-price forthe injury, he pays it and keeps his slave. If he wishes to surrenderhim, he surrenders him, and none of that is against him. The masterhas the option in that." Malik related to me from Ibn Shihab from Said ibn al-Musayyabthat Uthman ibn Affan said, "If someone gives something to his smallchild who is not old enough to look after it himself, and in orderthat his gift might be permitted he makes the gift public and has itwitnessed, the gift is permitted, even if the father keeps charge ofit." Malik said, "What is done in our community is that if aman gives his small child some gold or silver and then dies and he hasit in his own keeping, the child has none of it unless the father setit aside in coin or placed it with a man to keep for the son. If hedoes that, it is permitted for the son."