In the fabric of time, the threads of heritage intertwine with the texts of Sharia, highlighting the necessary guidance as a narrative that gives us glimpses of jurisprudence capable of expansion and development according to circumstances and events. It achieves harmony between the sciences of Sharia and rare social cases, blending the perspectives of the past and present to reveal the delicate balance between the whispers of Islamic heritage and the pages of jurisprudence within a tale that invites us to contemplate the bonds of family and the eternal quest for understanding amidst the waves of faith and fleeting moments of life.
My grandfather, Hajj Mohammed Okbelbab, may he rest in peace, worked in the city of Al Mahallah Al Kubra in the Nile Delta of Egypt as a wholesale merchant in various grocery items. To this day, I can still smell the fragrance of stacks of soap cubes, particularly the Nabulsi soap.
I used to take the train from Cairo with my mother and younger sister during the mid-year school vacation to visit him.
At a time when Mazda taxis had not yet filled the city streets, the adventure of sitting outdoors next to the driver of the cart we took from the train station to my grandfather’s house was thrilling. As a child of no more than seven years old, I watched in amazement the veins of his sleek black horse as it pulled the cart, the metallic clatter of its hooves against the asphalt, and the occasional crack of the whip in the air. It felt like a journey through time that I was not accustomed to amidst the hustle and bustle of Cairo’s transportation.
I still remember our ascent up the damp, dark staircase in my grandfather’s three-story house until we reached the door. My grandmother would open it with a welcoming smile and then set the delicious food she had prepared for us on the table. As this occurred, my grandfather would enter, his red fez and carefully pressed grey robe adding to the sound of the key turning the latch.
My grandfather had hoped for a son to carry on his name and take over his business, but he was blessed only with daughters. He had two sons who died in infancy. Finally, at the end of his anticipation for the longed-for son, he was blessed with my father, the last of the cluster. So, my share of the world was aunts, six in total, without uncles. They were older than my father by a significant age gap, nearing my grandmother’s age rather than my mother’s. Consequently, my father grew up from childhood as an uncle to those of his age or slightly younger.
My father exceeded my grandfather’s ambitions in running his store; he became a university professor teaching surgery. However, at the age of thirty-four, my grandfather was shocked by the news of his only son’s death on a pilgrimage trip that departed from Riyadh, where he worked as a doctor, due to a car accident he was involved in, which overturned on the outskirts of Mecca due to a stray camel blocking the road. My grieving grandfather received my father’s body at Cairo Airport and laid him to rest in his hometown.
During the ten years that my grandfather lived before being buried next to his son, I did not realize the reason for this royal treatment that I received from him. Undoubtedly, he saw in his orphaned grandson carrying his name – as he always wished – his late son.
Although my father passed away before my grandfather, the court in Egypt ruled in favour of my sister and me to receive a share of our grandfather’s inheritance. Although the branch (my father) had died before the root (my grandfather), as stipulated by the mandated will, I believed that this was a universally recognized legal ruling in all Muslim countries. However, when I travelled to some Gulf countries for work, I discovered this was not applied in several Arab countries. It equals the share of the deceased branch (my father in this case), as if he had not died before the root (his father), provided it does not exceed one-third of the root’s inheritance. As for my grandfather and grandmother’s share in my father’s inheritance, he generously gifted it to me and my sister during their lifetime, and my grandfather went further by registering his house to us while he was alive.
A person is born naked in this world, and the world clothes him with everything, even his name, which he does not choose. With his death, all his rights are revoked. His possessions, over which he had the authority to dispose during his lifetime by selling or gifting, are no longer his own. His marital partner becomes free to marry another. If he bequeaths something from his possessions to someone, his will is not binding except for a non-heir and not exceeding the value of one-third of what he leaves behind.
The four Sunni schools of thought have unanimously agreed that if a branch (offspring) dies during the lifetime of the trunk (parent), the branch’s descendants are excluded from the trunk’s inheritance. Therefore, grandchildren have no share in the inheritance left by their grandfather to their father (the branch) if their father dies before their grandfather.
According to the Islamic books collector, most scholars have also agreed that making a will for a non-heir within the limits of one-third is obligatory, and they have unanimously declared the one who neglects to do so as sinful.
However, some scholars, including Muhammad ibn Hazm al-Zahiri, have disagreed with the majority and, based on their independent reasoning, have adopted the concept of an obligatory bequest. In this view, if a grandfather whose son passed away during his lifetime failed to make a will for his grandchildren, the judge is obligated to enforce this bequest that the grandfather should have made. It is as if Ibn Hazm and those who share his opinion intended for the grandchildren to have a share in their grandfather’s inheritance, fearing they might not be taken care of by the legal heirs.
Ibn Hazm contradicts the majority opinion, which was not even applied by the Prophet Muhammad (may Allah’s peace and blessings be upon him), his companions, or those who came after them, relying on his interpretation of the Quranic verses in Surah Al-Baqarah and An-Nisaa.
“Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.” [Surah Al-Baqarah: 180]
“And when [other] relatives and orphans and the needy are present at the [time of] division, then provide for them [something] out of the estate and speak to them words of appropriate kindness.” [Surah An-Nisaa: 8]
On the other hand, scholars argue that the ruling is abrogated by the verses of inheritance, which specify the inheritance shares in great detail. I believe that considering the obligatory bequest might be disrespectful to Allah and a distortion of clear and definitive inheritance rulings is unjust to the actual heirs.
Similarities and Differences between obligatory bequest & optional bequest
The obligatory bequest is similar to the optional bequest in that both are not permissible for heirs. Still, it resembles inheritance in its mandatory nature and in making the male a portion equal to that of two females. It is also prioritized over all optional wills and does not require the acceptance of the testator and the beneficiary. Additionally, Scholars have differed on the permissibility of inheritance between a Muslim and a non-Muslim, but they agreed on the permissibility of bequests between them.
And it is worth mentioning that this is not the only instance in which some Muslims in later eras adopted a ruling that was not known during the time of the Prophet Muhammad (may Allah’s peace and blessings be upon him) and was not endorsed by the scholars of the four schools of thought. For example, Umar ibn al-Khattab (may Allah be pleased with him) used to implement the triple divorce with a single statement as a disciplinary measure, contrary to the opinion of Ibn Taymiyyah and other later scholars who disagreed with what ibn al-Khattab did in this matter.
Regarding precedence, debt takes precedence over the obligatory bequest, and it takes precedence over the optional bequest. Both bequests come second in the rights related to the deceased’s estate after settling the expenses of preparation, burial, and payment of debts the deceased owes, provided that they do not exceed one-third of the estate’s value.
Shuaib’s Musnad mentions that Ali ibn Abi Talib, may God be pleased with him, denounced considering the will before paying the debt. He said, “The Prophet (may Allah’s peace and blessings be upon him) settled debts before bequests, while you recite: “After [the settlement of] a bequest or a debt.”
He means a verse, Surah An-Nisaa: “And for you is half of what your wives leave if they have no child. But if they have a child, for you is one fourth of what they leave, after any bequest they [may have] made or debt. And for the wives is one fourth if you leave no child. But if you leave a child, then for them is an eighth of what you leave, after any bequest you [may have] made or debt. And if a man or woman leaves neither ascendants nor descendants but has a brother or a sister, then for each one is a sixth. But if they are more than two, they share a third, after any bequest which was made or debt, as long as no detriment [caused]. [This is] an ordinance from Allah, and Allah is Knowing and Forbearing.”
The Arabic linguistic definition of bequest (Wasia) is derived from connecting things, and it connects what was in life after death. In Islamic religious law (Sharia), a bequest is a gift from one person to another, whether a specified amount of money, property or benefit from what the beneficiary owns after the testator’s death.
The bequest has four pillars: the testator, who owns the bequest; the beneficiary, who is the deserving recipient of the bequest; the bequest, which is the thing bequeathed; and the guardian, who is responsible for carrying out the bequest for the beneficiary. However, the guardian is appointed if the beneficiary is ineligible due to young age or mental incapacity.
Some Muslims reject the obligatory bequest due to its weak argument or because of the jurisprudential disagreement surrounding it. Here, the ruler has the role of resolving the dispute in controversial matters with strict legal control. Generally, whoever wants to be on the safe side can waive a share of the obligatory bequest to the heirs.
It happened once in Egypt when someone attempted to challenge the obligatory bequest law, which has been in effect since 1946, in a 2008 lawsuit. He objected to his sister’s children taking part in the estate under the name of an obligatory bequest, claiming that the law was unconstitutional. However, the Supreme Constitutional Court rejected his lawsuit in 2021, enforcing the law’s provisions and requiring him to cover expenses and attorney fees.
The Obligatory Bequest in the Arab World
After conducting research into the legal frameworks of several Arab nations, it was found that Egypt pioneered provisions of the obligatory bequest law in 1946 under Law No. 76. Subsequently, most Arab countries followed it. Syria adopted similar provisions in 1953, followed by Morocco through the Royal Decree in 1958, and Tunisia and Iraq in 1959. Palestine followed in 1962, Kuwait in 1971, Jordan in 1976, Algeria in 1984, Sudan in 1991, Yemen in 1992, Libya in 1994, Oman in 1997, Mauritania in 2001, and the UAE in 2005. Some of these countries, like Algeria, Sudan, and Mauritania, referred to the obligatory bequest as “Tanzeel,” meaning replacing one thing with another.
Qatar, Saudi Arabia, and Bahrain are each considering different approaches to implementing the obligatory bequest, even though the Muscat Document, also known as the Unified Personal Status Law for Gulf Cooperation Council (GCC) countries, was enacted as Law No. 28 of 2001. Article 228 of this law stipulates that the obligatory bequest, its contents, and the principles of obligation are regulated according to the authorities’ discretion in the countries, without specific obligations.
In Bahrain, some voices are calling to legislate the obligatory bequest. For example, Shura Council member Rashid Al Sabt proposed a bill in 2008 urging the Bahraini legislator to adopt the bequest, which would aim to care for orphans after their decedent’s death. As of today, Saudi Arabia and Qatar have not yet enacted legislation mandating the obligatory bequest.
The Qatari law recognizes optional bequests rather than obligatory ones, considering them as a form of donation added to what comes after the testator’s death. However, there are obstacles to their implementation, such as if the testator is incapacitated, as in the case of mental incapacity or lack of intention, such as when one is in a dying condition.
Additionally, if there is no evidence from a document or credible witnesses, or if the testator does not have authority over what they have bequeathed, as in the case of mandating marriage between specific individuals, the validity of marriage requires the voluntary consent of both parties. Moreover, if the testator mandates something that contradicts the law in the place of execution of the will or if the intended beneficiary refuses or dies before the will is executed.
Moreover, Qatari Family Law No. 22 of 2006 details various bequest-related cases. It allows for the validity of a will if the intended beneficiary remains silent for thirty days after being informed of it. If the intended beneficiary dies after the testator without issuing acceptance or rejection, the right then passes to their heirs. In the case of the intended beneficiary being incapacitated, such as being a fetus, a minor, or under guardianship, the guardian of their estate has the authority to accept the will, and they do not have the right to reject it without the judge’s permission.
Since the bequest is neither legally nor religiously valid for the heirs, some people have resorted to gifting whatever they desire during their lifetime and allocating it to one or some of their heirs. One of the most famous examples is registering all of a father’s assets or some of them while he is alive for his daughters in the absence of a male sibling for them, fearing that the rest of the legal heirs will share with them in the inheritance.
Despite the fact that Sharia law mandates the Osba, the father’s male relatives, spend on the daughters of the deceased if they do not have sufficient means, it happens that some hesitate to file maintenance cases against their families. Some view this behaviour as similar to the behaviour of the Jews, whom Allah described as transgressors because they circumvented Allah’s prohibition against fishing on Saturday by setting up nets to catch whatever entered them, to be collected the following day.
Allah says in Surah Al-A’raaf: “And ask them about the town that was by the sea – when they transgressed in [the matter of] the sabbath – when their fish came to them openly on their sabbath day, and the day they had no sabbath they did not come to them. Thus did We give them trial because they were defiantly disobedient.”
But there are who allow the father to gift some or all of his possessions to his daughters during his lifetime, even though they are considered as heirs, under the premise that he is legally free to gift whatever he owns to whomever he wishes.
Money, Sons and Daughters
Every Muslim must ascertain their intention: Do they think that someone other than Allah provides sustenance, or that someone else determines destinies? This is explicitly clarified by Allah in Surah Luqman, in His saying: “O mankind, fear your Lord and fear a Day when no father will avail his son, nor will a son avail his father at all. Indeed, the promise of Allah is truth, so let not the worldly life delude you and be not deceived about Allah by the Deceiver. Indeed, Allah [alone] has knowledge of the Hour and sends down the rain and knows what is in the wombs. And no soul perceives what it will earn tomorrow, and no soul perceives in what land it will die. Indeed, Allah is Knowing and Acquainted.”
And look where you stand with regard to Abu Bakr and Umar, may God be pleased with them, As mentioned in Sunan Abi Dawud, what is narrated by Umar ibn al-Khattab that The Messenger of Allah (may Allah’s peace and blessings be upon him) commanded us one day to give Sadaqah. At that time, I had some property. I said: Today, I shall surpass Abu Bakr if I surpass him any day. I, therefore, brought half my property. The Messenger of Allah (may Allah’s peace and blessings be upon him) asked: What did you leave for your family? I replied: The same amount. Abu Bakr brought all that he had with him. The Messenger of Allah (may Allah’s peace and blessings be upon him) asked him: What did you leave for your family? He replied: I left Allah and His Apostle for them. I said: I shall never compete with you in anything.
In another story mentioned in Sahih al-Bukhari, what is narrated by Sa‘d ibn Abi Waqqās (may Allah be pleased with him) reported: “The Messenger of Allah (may Allah’s peace and blessings be upon him) came to visit me for an illness which became so hard to bear in the year of the Farewell Hajj. I said: “O Messenger of Allah, you can see the severity of the illness which I am experiencing. I have property and none will inherit me except a daughter. Shall I give two thirds of my property in charity?” The Messenger of Allah (may Allah’s peace and blessings be upon him) said: ‘No.’ I said: “Then shall I give one half, O Messenger of Allah?” He said: ‘No.’ Then I said: “So, (shall I give) one third?” The Messenger of Allah (may Allah’s peace and blessings be upon him) said: “(Give) one third, and one third is too much. Indeed, leaving your heirs rich is better than leaving them poor and begging from people. You never spend anything seeking thereby the pleasure of Allah but that you are rewarded for it, even what you place in the mouth of your wife.” I said: “O Messenger of Allah, will I be left here in Makkah after my companions have departed for Madīnah?” He said: “If you are left behind and do good deeds whereby you seek Allah’s pleasure, you will be raised a degree and your status will be elevated on account of them. Perhaps you will be left behind so that some people may benefit by you and others may be harmed by you. O Allah, complete for my Companions their Hijrah (immigration to Madīnah), and do not turn them back on their heels. The unfortunate one, however, is Sa‘d ibn Khawlah.” The Messenger of Allah (may Allah’s peace and blessings be upon him) felt sorry for him, as he had died at Makkah.”
And it is a mercy from Allah that He does not burden a soul beyond its capacity. Thus, Allah, the Almighty, says in Surah At-Taghaabun: “O you who have believed, indeed, among your wives and your children are enemies to you, so beware of them. But if you pardon and overlook and forgive – then indeed, Allah is Forgiving and Merciful. Your wealth and your children are but a trial, and Allah has with Him a great reward. So fear Allah as much as you are able and listen and obey and spend [in the way of Allah]; it is better for your selves. And whoever is protected from the stinginess of his soul – it is those who will be the successful. If you loan Allah a goodly loan, He will multiply it for you and forgive you. And Allah is Most Appreciative and Forbearing. Knower of the unseen and the witnessed, the Exalted in Might, the Wise.”
And Allah is the Highest and the Most Knowing.
