Wills and Testaments

Al-Muwatta' of Imam Malik

by Imam Malik ibn Anas
Translated by: Ustadha Aisha Bewley

37 Wills and Testaments

 

37.1 The Command to Write Wills

1 Malik related to me from Nafi' from 'Abdullah ibn 'Umar that the Messenger of Allah, may Allah be pleased with him, said, "It is the duty of a Muslim man who has something to be given as a bequest not to spend two nights without having a written will in his possession."

[cf Bukhari 2587]

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 involves emancipation of or such things, he can alter it in any way he chooses until he is on his death-bed. If he prefers to abandon a bequest or change it, he can do so unless he has made a slave 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 having a written will in his possession."

Malik explained, "Had the testator not been able to change his will nor what was mentioned in it about freeing slave, testators might withhold from making bequests from their property, whether it be freeing slaves or other than that. A man makes a bequest while he is healthy or travelling (i.e. he does not wait until he is on 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 such things except for the granting of mudabbar status."

 

37.2 Permissibility of the Bequest of Children, Simpletons, Lunatics and Idiots

2 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 an adolescent boy here who has not yet reached puberty. He is from the Ghassan tribe and his heir is in Syria. He has property and the only relative he has here is the daughter of one of his paternal uncles." 'Umar ibn al-Khattab instructed, "Let him make 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 none other than the mother of 'Amr ibn Sulayman az-Zuraqi."

3 Malik related to me from Yahya ibn Sa'id from Abu Bakr ibn Hazm that a boy from Ghassan was dying in Madina while his heir was in Syria. This was mentioned to 'Umar ibn al-Khattab. He was told, "So-and-so is dying, should he make a bequest?" He said, "Let him make a bequest."

Yahya ibn Sa'id said that Abu Bakr had said, "He was a boy of ten or twelve." Yahya said, "He made the well of Jusham a bequest, and her family 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 from time to time 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 totally lacking in comprehension cannot make a bequest."

 

37.3 Limiting the Bequest to One-Third of the Estate

4 Malik related to me from Ibn Shihab from 'Amir ibn Sa'd 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 had 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 to inherit 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 asked, '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.' Sa'd said, 'Messenger of Allah, will I be left here in Makka after my companions have left 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! make the hijra of my companions complete and do not turn them back on their heels. The unfortunate one is Sa'id 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."

[cf Bukhari 2591. Also in Muslim]

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 investigated and the slave was found to constitute 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 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 he long as lived dies, then the slave is set free."

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 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."

 

37.4 Dealing with the Property of the Pregnant Woman, the Sick Person and Someone Present in Battle

Yahya said that he heard Malik say, "The best of what I have heard about the testament of the pregnant woman and about what settlements she is permitted to make from her property is that the pregnant woman is like a sick person. When the sickness 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 the pregnancy is good news and joy. It is not illness and not to be feared because Allah the Blessed, the Exalted, says in His Book, 'So We gave her the good news of Ishaq and Ya'qub after Ishaq' (11:71). And He says, 'She bore a light load and carried it around. Then when it became heavy they called on Allah, their Lord, "If You grant us a healthy child, we will be among the thankful!"' (7:189)

"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, says in His Book, 'Mothers should nurse their children for two full years.' (2:233) And He says, 'His bearing and weaning take thirty months.' (46:15)

"When six months have gone by since the woman 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 that situation pertains."

 

37.5 Bequests to Heirs and Right of Possession

Yahya said that he heard Malik say, "This ayat is abrogated. It is the word of Allah, the Blessed, the Exalted, 'If he has some goods to leave, to make a will in favour of his parents and relatives.' (2:180) What came down about the division of the fixed shares of inheritance in the Book of Allah, the Mighty, the Exalted, abrogates it."

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 two-thirds of his property than he himself is. 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 dying man says to him, 'So-and-so (one of his heirs) is weak, and I would like for you to give him your inheritance.' So he gives it to him. That is permitted when the dying man specifies 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, the residue 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 yet taken possession of, so the heirs refused to permit that. Malik said, "Such a 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)."

 

37.6 Effeminate Men and the Custody of Children

5 Malik said from Hisham ibn 'Urwa from his father that an effeminate man was once in the company of 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 Ghaylan. 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 mix freely with you." (It was customary to allow men with no sexual inclination to enter freely where there were women.)

[In Bukhari and Muslim]

6 Malik related to me that Yahya ibn Sa'id said that he heard al-Qasim ibn Muhammad say, "A woman of the Ansar was married to 'Umar ibn al-Khattab. She bore to him 'Asim ibn 'Umar 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 child's grandmother 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."

 

37.7 Liability for Defective Goods

Yahya said that he heard Malik speak about a man who bought goods - animals or clothes or wares - and the sale was found to be not 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 buyer are 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 is 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 buyer may take the goods from the other man and sell them for ten dinars or keep them at that 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 seller's property. Or perhaps they are taken by the buyer 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 buyer should not have to pay ten 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 added, "Part of what clarifies this is that when a thief steals goods, only their price on the day he stole them is considered. If cutting off the hand is necessary 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 cancel the hadd which was obliged for him on the day he stole, for 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."

 

37.8 General Chapter on Making Judgement and Shying Away from it

7 Malik related to me from Yahya ibn Sa'id 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. A 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 the permission of its master in anything involving danger to his person, whose equivalent 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 enslaved."

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 so desires."

8 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 the 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 tomorow and we will divide his property between his creditors. Beware of debts! Their beginning is a worry and their end is destitution!"

 

37.9 Damages and Injuries Caused by Slaves

 

Yahya said that he heard Malik say, "The sunna with us about crimes committed by 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. Such things are counted against the slave's person and do 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 has taken or ruined, or pay the blood-price for the injury he has caused, 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."

 

37.10 What is Permitted of Gifts

 

9 Malik related to me from Ibn Shihab from Sa'id 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 whilst it is in his own keeping, the child has none of it unless the father has set it aside in coin or placed it with a man to keep for the son. If he has done that, it is permitted for the son."