The Obligatory Bequest: necessity or choice?

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.

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.