Thursday, September 10, 2009

Clarifying the Distinction Between the Wasiyyah (Will) and the Irth (Inheritance)

From the Book of Allaah:

“After (the distribution of) a wasiyyah that was intended, or a debt” [1]

In this verse, Allaah lays down the legislation for how irth is to be distributed. Then, He legislates that the irth is to be distributed after any wasiyyahs or debts. In the next aayah as well, Allaah repeats this distinction three more times.

From the Sunnah of the Prophet (sallallaahu ‘alayhe wa sallam):

“Verily Allaah has given every person his true rights, so there can be no wasiyyah for a waarith (one who receives irth), and the child is for the (owner of the) bed, and the fornicator gets the stone (ie. nothing)…” [2]

Here the Messenger (sallallaahu ‘alayhe wa sallam) forbids the one who receives irth from also receiving a wasiyyah. So obviously they are two separate things with different rulings.

What exactly is a wasiyyah then?

Muhammad ibn Ahmad Al-Hafeed (d.595), the author of Bidaayatul-Mujtahid, said:

“The wasiyyah, in a nutshell, is a man giving a gift from his wealth to another or a group of people after his death, or that he frees his slave, whether he mentions the word ‘wasiyyah’ specifically or not.” [3]

So the wasiyyah is that which is given to someone according to the wishes of the deceased. It can be expressed verbally or in writing, and then it is witnessed. In the West, it is similar to when a man writes someone in his will to receive his house, car, or a sum of money.

We have been prohibited from taking the irth of the kuffaar, according to the hadeeth:

“The Muslim may not take the irth of the kaafir, nor may the kaafir take the irth of the Muslim.” [4]

Does this prohibition also include the wasiyyah as well? Let us look to some of the statements of the scholars.

The statements of the scholars concerning a Muslim’s wasiyyah to a kaafir

With regards to a Muslim giving a wasiyyah to a kaafir, then the scholars have unanimously agreed that it is permissible. Ibn ‘Abdil-Barr said:

“There is no differing among the scholars, that I know of, over the permissibility of a Muslim giving a wasiyyah to his kaafir relative, since they do not inherit from him. And Safiyyah bint Huyay gave a wasiyyah to her Jewish brother.” [5]

Ibn Qudaamah Al-Maqdisee (d.620) said:

“The permissibility of a Muslim giving a wasiyyah to a thimmee has been reported from Shurayh, Ash-Sha’bee, Ath-Thawree, Ash-Shaafi’ee, Ishaaq, and the Hanafees. I do not know anyone who differed with them.” [6]

Al-Maardeenee (d.912) said:

“It (the wasiyyah) is allowed to be given to the poor people of a specific area, or a band of them, and to a thimmee, a young child, or an insane person by agreement of the scholars.” [7]

The statements of the scholars concerning the kaafir’s wasiyyah to a Muslim

The scholars have also agreed that a Muslim may accept the wasiyyah of a kaafir. Ibn Al-Munthir (d.318) said, relating a consensus:

“All of the people of knowledge that we take from have agreed that the wasiyyah of a thimmee (a Jew or a Christian living under Islaamic rule) is permissible, so long as the thing given itself is permissible to possess.” [8]

Muhammad ibn Ahmad Al-Hafeed (d.595), the author of Bidaayatul-Mujtahid, said:

“And the wasiyyah of a kaafir is permissible to take according to them (the imaams), so long as the wasiyyah is not something haraam in itself.” [9]

Ibn Qudaamah Al-Maqdasee said:

“So when it is permissible for a Muslim to give a wasiyyah to a thimmee, then a thimmee’s wasiyyah to a Muslim, or to another thimmee, has even more right.” [10]

Muhammad ibn Saalih Al-‘Uthaymeen (d.1421) said:

“If someone asks, ‘How can one’s parents not be considered waariths?’ The answer: That is possible, like when the mother or father has a different religion, then they do not take any irth, rather they can be given a wasiyyah.” [11]

In Conclusion

If one of Fulaan the Muslim’s kaafir relatives dies, and he/she left for Fulaan a sum of money or some kind of property or wealth, having specified it for Fulaan, either in writing or by speech or gesture, and, as a result, that wealth is then offered to Fulaan, then it is permissible for Fulaan to accept it, and it is from Allaah’s halaal provisions for him. And Allaah is Al-Muwaf-fiq.

The next question that we need to have answered in this thread is:

What if the kaafir relative specifies Fulaan to receive more than one-third of his/her wealth? The Prophet (sallallaahu ‘alayhe wa sallam) forbade us from giving someone more than one-third of our wealth as a wasiyyah. The scholars have two positions with regards to the one who left a wasiyyah of more than one-third:

1) Only up to one-third may be given, and the rest is to be distributed as irth.

2) The entire wasiyyah can be given only with the consent of all the inheritors. If they do not agree, then only up to one-third is given and the rest is distributed to the inheritors.

So then does this apply to the kaafirs? Do we restrict them to one-third as well? If Fulaan’s kaafir relative leaves everything as a wasiyyah for him, can he take it? May Allaah assist us in finding answers from the people of knowledge for these important questions!


[1] Soorah An-Nisaa’ 4:11

[2] Saheeh Sunan At-Tirmithee (2120)

[3] Bidaayatul-Mujtahid (4/180)

[4] Al-Bukhaaree and Muslim

[5] At-Tamheed (13/239)

[6] Al-Mughnee (8/512)

[7] Irshaad Al-Faaridh (p.275)

[8] Al-Ijmaa’ (p.275)

[9] Bidaayatul-Mujtahid (4/173)

[10] Al-Mughnee (8/512)

[11] Tafseer Soorah Al-Baqarah (2/309)

Originally posted on - added to at author's request.

Source: Troid


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