كتاب الوصيةWills and Testaments

Malik related to me from Nafi from Abdullah ibn Umar that the

Messenger of Allah, may Allah bless him and grant him peace, said, "It

is the duty of a muslim man who has something to be given as a bequest

not to spend two nights without writing a will about it."

Malik said, "The generally agreed-on way of doing things in our

community is that when the testator writes something in health or

illness as a bequest, and it has freeing slaves or things other than

that in it, he can alter it in any way he chooses, until he is on his

deathbed. If he prefers to abandon a bequest or change it, he can do

so 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 has

made mudabbar. He is allowed to change his testament because the

Messenger of Allah, may Allah bless him and grant him peace, said, "It

is the duty of a muslim man who has something to be given as a bequest

not to spend two nights without writing a will about it."

Malik explained, "Had the testator not been able to change his will

nor what was mentioned in it about freeing slaves, each testator might

withhold making bequests from his property, whether in freeing slaves

or other than it. A man gives a bequest in his health and in his

travelling." (i.e. he does not wait till his death bed ) .

Malik summed up, "The way of doing things in our community about which

there is no dispute is that he can change whatever he likes of that

except for the mudabbar."

Malik related to me from Abdullah ibn Abi Bakr ibn Hazm that Amr

ibn Sulaym az-Zuraqi informed his father that it had been said to Umar

ibn al-Khattab, "There is here an adolescent boy who has not yet

reached 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 his

paternal uncles." Umar ibn al-Khattab instructed, "Let him leave her a

bequest." He willed her a property called the well of Jusham.

Malik added, "That property was sold for 30,000 dirhams, and the

daughter of the paternal uncle to whom he willed it was the mother of

Amr ibn Sulaym az-Zuraqi."

Malik related to me from Yahya ibn Said from Abu Bakr ibn Hazm

that a boy from Ghassan was dying in Madina while his heir was in

Syria. 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 make

a bequest."

Yahya ibn Said said that Abu Bakr had said, "He

was a boy of ten or twelve years." Yahya said, "He willed the well of

Jusham, and his people sold it for 30,000 dirhams."

Yahya

said that he heard Malik say, "The generally agreed-on way of doing

things in our community is that a simpleton, an idiot, or a lunatic

who recovers at times, can make wills if they have enough of their

wits about them to recognise what they will. Someone who has not

enough wits to recognise what he wills, and is overcome in his

intellect, cannot make a bequest."

Malik related to me from Ibn Shihab from Amir ibn Sad ibn Abi

Waqqas that his father said, "The Messenger of Allah, may Allah bless

him and grant him peace, came to me to treat me for a pain which

became 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. I

have property and only my daughter inherits from me. Shall I give two

thirds of my property as sadaqa?' The Messenger of Allah, may Allah

bless him and grant him peace, said, 'No.' I said, 'Half?' He said,

'No.' Then the Messenger of Allah, may Allah bless him and grant him

peace, said, 'A third, and a third is a lot. Leaving your heirs rich

is better than leaving them poor to beg from people. You never spend

anything on maintenance desiring the Face of Allah by it, but that you

are rewarded for it, even what you appoint for your wife.' Sad said,

'Messenger of Allah, will I be left here in Makka after my companions

have departed for Madina?' The Messenger of Allah, may Allah bless him

and grant him peace, said, 'If you are left behind, and do sound deeds

you will increase your degree and elevation by 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 their hijra for my companions, and

do not turn them back on their heels. The unfortunate one is Said ibn

Khawla.' The Messenger of Allah, may Allah bless him and grant him

peace, was distressed on his account for he had died at Makka."

Yahya said that he heard Malik speak about a man who willed a

third of his property to a man and said as well, "My slave will serve

so-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 of

the property of the deceased. Malik said, "The service of the slave is

evaluated. Then the two of them divide it between them. The one who

was willed a third takes his third, as a share, and the one who was

willed the service of the slave takes what was evaluated for him of

the slave's service. Each of them takes, from the service of the slave

or from his wage if he has a wage, according to his share. If the one

who was given the service of the slave for as long as he lived dies,

then the slave is freed."

Yahya said that he heard Malik

speak 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 his

property, and his heirs protested that it was more than a third."

Malik said, "The heirs then have an option between giving the

beneficiaries their full bequests and taking the rest of the property

of the deceased, or between dividing among the beneficiaries the third

of 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 have

heard about the testament of a pregnant woman and about what

settlements she is permitted in her property is that the pregnant

woman is like the sick person. When the illness is light, and one does

not 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 only

dispose of a third of his estate."

He said, "It is the same

with a woman who is pregnant. The beginning of pregnancy is good news

and joy. It is not illness and no fear because Allah the Blessed, the

Exalted, said in His Book, 'We gave her good news of Ishaq and after

Ishaq, Yaqub.' (Sura ll ayat 71). And He said, 'She bore a light

burden and passed by with it, but when she became heavy, they called

upon Allah, their Lord, "If you give us a good-doing son, we will be

among the thankful." '(Sura 7 ayat 189).

"When a pregnant

woman becomes heavy, she is only permitted to dispose of a third of

her estate. The beginning of this restriction is after six months.

Allah, the Blessed, the Exalted, said in His Book, 'Mothers suckle

their children for two complete years.' And He said, 'his bearing and

weaning are thirty months.' (Sura 2 ayat 233).

"When six

months 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 row

for battle, can only dispose of a third of his property. He is in the

same 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. It

is the word of Allah, the Blessed, the Exalted, 'If he leaves goods,

the testament is for parents and kinsmen.' What came down about the

division of the fixed shares of inheritance in the Book of Allah, the

Mighty, the Exalted, abrogated it."

Yahya said that he heard

Malik say, "The established sunna with us, in which there is no

dispute, 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 the

other heirs permit him. If some of them permit him and others refuse,

he is allowed to diminish the share of those who have given their

permission. Those who refuse take their full share from the

inheritance.

Yahya said that he heard Malik speak about an

invalid who made a bequest and asked his heirs to give him permission

to make a bequest when he was so ill that he only had command of a

third of his property, and they gave him permission to leave some of

his heirs more than his third. Malik said, "They cannot revoke that.

Had they been permitted to do so, every heir would have done that, and

then, when the testator died, they would take that for themselves and

prevent him from bequeathing his third and what was permitted to him

with respect to his property."

Malik said, "If he asks

permission of his heirs to grant a bequest to an heir while he is well

and they give him permission, that is not binding on them. The heirs

can rescind that if they wish. That is because when a man is well, he

is entitled to all his property and can do what he wishes with it. If

he wishes, he can spend all of it. He can spend it and give sadaqa

with it or give it to whomever he likes. His asking permission of his

heirs is permitted for the heirs, when they give him permission when

authority over all his property is closed off from him and nothing

outside of the third is permitted to him, and when they are more

entitled to the two-thirds of his property than he is himself. That is

when their permission becomes relevant. If he asks one of the heirs to

give his inheritance to him when he is dying, and the heir agrees and

then the dying man does not dispose of it at all, it is returned to

the one who gave it unless the deceased said to him, 'So-and-so - (one

of his heirs) - is weak, and I would like you to give him your

inheritance.' So he gives it to him. That is permitted when the

deceased specified it for him."

Malik said, "When a man gives

the dying man free use of his share of the inheritance, and the dying

man distributes some of it and some remains, it is returned to the

giver, after the man has died."

Yahya said that he heard

Malik speak about someone who made a bequest and mentioned that he had

given one of his heirs something which he had not taken possession of,

so the heirs refused to permit that. Malik said, "That gift returns to

the heirs as inheritance according to the Book of Allah because the

deceased did not mean that to be taken out of the third and the heirs

do not have a portion in the third (which the dying man is allowed to

bequeath)."

Malik said from Hisham ibn Urwa from his father that an

effeminate man was with Umm Salama, the wife of the Prophet, may Allah

bless him and grant him peace. He said to Abdullah ibn Abi Umayya

while the Messenger of Allah, may Allah bless him and grant him peace,

was listening. "Abdullah! If Allah grants you victory over Ta'if

tomorrow, I will lead you to the daughter of Ghailan. She has four

folds on her front and eight folds on her back." The Messenger of

Allah, may Allah bless him and grant him peace, said, "This sort of

man should not enter freely with you." (It was customary to allow men

with 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 ibn

al-Khattab. She bore Asim ibn Umar to him, and then he separated from

her. Umar came to Quba and found his son Asim playing in the courtyard

of the mosque. He took him by the arm and placed him before him on his

mount. The grandmother of the child saw him and argued with Umar about

the child so they went to Abu Bakr as-Siddiq. Umar said, 'My son.' The

woman said, 'My son.' Abu Bakr said, 'Do not interfere between a child

and its mother.' Umar did not repeat his words."

Yahya said

that he heard Malik say, "This is what I would have done in that

situation."

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 be

permitted so it was revoked and the one who had taken the goods was

ordered to return the owner his goods. Malik said, "The owner of the

goods only has their value on the day they were taken from him, and

not on the day they are returned to him. That is because the man is

liable for them from the day he took them and whatever loss is in them

after that is against him. For that reason, their increase and growth

are also his. A man may take the goods at a time when they are selling

well and are in demand, and then have to return them at a time when

they have fallen in price and no one wants them. For instance, the man

may take the goods from the other man, and sell them for ten dinars or

keep them while their price is that. Then he may have to return them

while their price is only a dinar. He should not go off with nine

dinars 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 only

a dinar, then he has to return them, and their value on the day he

returns them is ten dinars. The one who took them does not have to pay

nine dinars from his property to the owner. He is only obliged to pay

the value of what he took possession of on the day it was taken ."

He said, "Part of what clarifies this is that when a thief

steals 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. If

the cutting off is delayed, either because the thief is imprisoned

until his situation is examined or he flees and then is caught, the

delay of the cutting off of the hand does not make the hadd, which was

obliged for him on the day he stole, fall from him even if those goods

become cheap after that. Nor does delay oblige cutting off the hand if

it was not obliged on the day he took those goods, even if they become

expensive after that."

Malik related to me from Yahya ibn Said that Abu'd-Darda wrote to

Salman al-Farsi, "Come immediately to the holy land." Salman wrote

back to him, "Land does not make anyone holy. Man's deeds make him

holy. I have heard that you were put up as a doctor to treat and cure

people. If you are innocent, then may you have delight! If you are a

quack, then beware lest you kill a man and enter the Fire!" When

Abu'd-Darda judged between two men, and they turned from him to go, he

would look at them and say, "Come back to me, and tell me your story

again. A quack! By Allah!"

Yahya said that he heard Malik

say, "If someone makes use of a slave, without permission of its

master, in anything important to him, whose like has a fee, he is

liable for what befalls the slave if anything befalls him. If the

slave 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 part

free and part enslaved, "His property is suspended in his hand and he

cannot begin anything with it. He eats from it and clothes himself in

an approved fashion. If he dies, his property belongs to the one to

whom he is in slavery."

Yahya said that he heard Malik say,

"The way of doing things in our community is that a parent can take

his child to account for what he spends on him from the day the child

has 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 buy

camels before people set out for hajj and sell them at a higher price.

Then he travelled quickly and used to arrive in Makka before the

others who set out for hajj. He went bankrupt and his situation was

put before Umar ibn al-Khattab, who said, "O People! al-Usayfi, al-

Usayfi of the Juhayna, was satisfied with his deen and his trust

because 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 of

his 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 between

his creditors. Beware of debts! Their beginning is a worry and their

end is destitution. "

Yahya said that he heard Malik say, "The sunna with us about the

crime of slaves is that the hand is not cut off for any harm that a

slave causes a man, or something he pilfers, or something guarded

which 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 of

the slave whether it is little or much. If his master wishes to give

the value of what the slave took or ruined, or pay the blood-price for

the injury, he pays it and keeps his slave. If he wishes to surrender

him, he surrenders him, and none of that is against him. The master

has the option in that."

Malik related to me from Ibn Shihab from Said ibn al-Musayyab

that Uthman ibn Affan said, "If someone gives something to his small

child who is not old enough to look after it himself, and in order

that his gift might be permitted he makes the gift public and has it

witnessed, the gift is permitted, even if the father keeps charge of

it."

Malik said, "What is done in our community is that if a

man gives his small child some gold or silver and then dies and he has

it in his own keeping, the child has none of it unless the father set

it aside in coin or placed it with a man to keep for the son. If he

does that, it is permitted for the son."