Mandatory Bequest in Islamic Jurisprudence and Law

Abstract

Undoubtedly, death is an accepted reality for every human being. After death, most Muslims leave behind wealth and property, which is then divided among the deceased's heirs according to Islamic legal rulings. However can a deceased person, during their lifetime, make a bequest of a portion of their wealth to non-heirs? Is such a bequest permissible and legitimate, or is it obligatory? Scholars have differing opinions on this matter.

The majority of scholars from Hanafi, Maliki and Shafi School of thought state that, in the early period of Islam, the Quranic verse (Surah Al-Baqarah, 2:180) made it obligatory for individuals to bequeath a portion of their wealth to their parents and close relatives who were not entitled to inheritance: "Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he makes] a bequest for the parents and near relatives according to what is acceptable—a duty upon the righteous." According to this verse, bequeathing wealth to relatives was mandatory, and the distribution of inheritance was initially conducted based on such bequests. However, when the verses on inheritance were revealed, this obligation was abrogated, and it became a recommended act. Now, individuals may bequeath up to one-third or less of their wealth to non-heir relatives or the poor. However, Zahiri scholars and some interpreters of the Holy Qur’an, like Jassas, the author of Ahkam al-Quran, argue that the earlier obligation still stands. Jassas condends that it remains mandatory to bequeath a portion of wealth to non-heir relatives, based on the earlier verse, and this obligation was only abrogated concerning heirs, not non-heirs.

In Afghan civil law and the Egyptian law on bequests, a mandatory bequest is recognized only for grandchildren whose father passed away during the lifetime of their grandfather or grandmother and who, under inheritance laws, would not be entitled to inherit.