Ruling on the so-called binding will (wasiyah waajibah)
Question

                There is what is called the obligatory will in the system of heritage in some countries. Does it have any basics in the Islamic law? Is the portion of money taken through this system law halal?.
Praise be to Allah.
    In some Muslim countries the courts follow this law, which 
    deducts a part of the estate and gives it to the grandchildren in the name 
    of the “binding will” (wasiyah waajibah). 

    In brief, this law states that the will must be given to 
    members of the first level of daughters’ children and sons’ children so long 
    as there is no female between him and the deceased, a will like that which 
    their father would be entitled to of his father’s estate if he were alive at 
    the time of the grandfather’s death, subject to the following conditions: 

    1-It should not exceed one-third; 
    if it exceeds one-third then the grandchildren should take one-third only.

    2-The grandson should not be an 
    heir.

    3-The deceased grandfather should 
    not have given him the equivalent of what he is entitled to by means of a 
    bequest, gift or other means.

    The shar’i basis of this will: 

    The memo explaining the shar’i basis of this will stated the 
    following: The view that it is obligatory to leave a will to relatives who 
    are not heirs was narrated from many of the fuqaha’ of the Taabi’een and 
    imams of fiqh and hadeeth who came after them, including: Sa’eed ibn 
    al-Musayyab, al-Hasan al-Basri, Tawoos, Imam Ahmad, Dawood, al-Tabari, 
    Ishaaq ibn Raahawayh and Ibn Hazm. The basis of that is the verse in which 
    Allaah says (interpretation of the meaning): 

    “It is prescribed for you, when death approaches any of 
    you, if he leaves wealth, that he makes a bequest to parents and next of 
    kin, according to reasonable manners. (This is) a duty upon Al-Muttaqoon 
    (the pious)”

    [al-Baqarah 2:180]

    The view that some of the wealth of the deceased should be 
    given to relatives who are not heirs on the basis that it is a will that is 
    binding upon his wealth if he did not bequeath anything is the view of Ibn 
    Hazm, which was based on the views of some of the Taabi’een, and it was 
    narrated in one report from Imam Ahmad. End quote. 

    This text implies the following: 

    1 – Obligation of the will 

    The verse indicates that the will is obligatory for two 
    reasons: 

    (i)The word kutiba (it is 
    prescribed), which means it is enjoined.

    (ii)The phrase haqqan ‘ala 
    al-muttaqeen “a duty upon Al-Muttaqoon (the pious)” which is a 
    phrase which indicates that it is obligatory.

    2 – If he did not leave a bequest, then the will should be 
    executed even though he did not bequest it, in accordance with the state 
    law. They attributed this view to Ibn Hazm (may Allaah have mercy on him), 
    but we shall see below that Ibn Hazm did not discuss it in this manner which 
    is mentioned in the state law. 

    The scholars differed concerning this verse: is it abrogated 
    or not? 

    The majority (including the four Imams, Abu Haneefah, Maalik, 
    al-Shaafa’i and Ahmad – may Allaah have mercy on them) are of the view that 
    it is abrogated. They quoted a number of matters as evidence for that: 

    (i)Among the companions of the 
    Prophet  (peace and blessings of Allaah be upon him) are those from whom 
    there is no report that they left wills (wasiyah) and there is no report 
    that anyone denounced that. If it had been obligatory then they would not 
    have failed to do it and it would have been narrated from them in a clear 
    text that they acted upon it.

    (ii)The will (wasiyah) is a gift, 
    and a gift is not binding during a person’s lifetime, so it cannot become 
    binding after his death.

    (iii)A will given to an heir is 
    abrogated by the verses on inheritance, according to the majority (of 
    scholars), or it is abrogated by the hadeeth “There is no bequest (wasiyah) 
    for an heir” according to some scholars. So this verse has been abrogated in 
    both its meanings and its rulings, one of which is a bequest to an heir.

    Ibn ‘Abd al-Barr (may Allaah have mercy on him) said: They 
    are unanimously agreed that it is not obligatory to make a will, apart from 
    a group who held the odd view that it is obligatory to do so. End quote from
    al-Tamheed (14/292). 

    Abu Dawood (2869) narrated that Ibn ‘Abbaas (may Allaah be 
    pleased with him) said: The best of the bequest to the parents and 
    relatives. The will remained like that until it was abrogated by the verse 
    on inheritance. Classed as saheeh by al-Albaani in Saheeh Abi Dawood. 
     

    Some of the salaf were of the view (which is also mentioned 
    by Ibn ‘Abbaas – may Allaah be pleased with him – according to one of the 
    two reports narrated from him) that the verse is not abrogated, rather the 
    relatives who are heirs were excluded from it, but the obligation remains in 
    effect with regard to non-heirs. 

    So this verse is to be understood in the light of the verses 
    on inheritance or the hadeeth “There is no bequest for an heir.” 

    See: al-Mughni (8/391) and al-Muhalla (9/312) 

    Compliance with this will that is dictated by state laws: 

    1 – Although they call it a wasiyah (bequest, will), it is in 
    fact a meeraath (inheritance). 

    Hence Shaykh Muhammad Abu Zahrah said in his book Sharh 
    Qanoon al-Wasiyah (p. 239), after mentioning the rulings on wills in 
    state laws: This is a summary of the rulings on the binding will (wasiyah 
    wajibah). … The aim, purpose and motive behind these rulings are the same as 
    those behind the rulings on the division of the estate. So in the light of 
    this binding will, the state law grants this share of the estate to the 
    children of the one who died before his parents as an obligatory 
    inheritance, which is what he would have been entitled to if he had outlived 
    his parents, so long as it is no more than one-third. As that is the aim of 
    the state law, all the rulings lead to making this binding will like a fixed 
    share of the estate, thus becoming binding with no reason to make it 
    binding, hence it is executed automatically every time, and thus it becomes 
    confused with the division of the estate as prescribed in sharee’ah. End 
    quote. 

    Once it becomes confused with the division of the estate as 
    prescribed in sharee’ah, then it is definitely invalid, because Allaah, may 
    He be exalted, has allocated the shares of inheritance Himself, and He has 
    explained them in detail in His Book. Then He says (interpretation of the 
    meaning): 

    “These are the limits (set by) Allaah (or ordainments as 
    regards laws of inheritance), and whosoever obeys Allaah and His Messenger 
    (Muhammad صلى الله عليه وسلم) will be 
    admitted to Gardens under which rivers flow (in Paradise), to abide therein, 
    and that will be the great success.

    14. And whosoever disobeys Allaah and His Messenger 
    (Muhammad صلى الله عليه وسلم), and 
    transgresses His limits, He will cast him into the Fire, to abide therein; 
    and he shall have a disgraceful torment”

    [al-Nisa’ 4:13-14]

    This binding will (wasiyah waajibah) implies altering the 
    ruling of Allaah, may He be exalted, and that is sufficient sin and obvious 
    misguidance, for no one is better in judgement than Allaah, may He be 
    glorified and exalted.  

    “Do they then seek the judgement of (the days of) 
    Ignorance? And who is better in judgement than Allaah for a people who have 
    firm Faith”

    [al-Maa’idah 5:50]

    2 –As for the verse [al-Baqarah 2:180] that they quote as 
    evidence for this binding will being prescribed, they go against it in three 
    ways: 

    (i)Allaah says “if he leaves 
    wealth (khayran)”. This is a restriction on the command to make a will; 
    no one is enjoined to make a will except the one who has khayran, 
    which means a great deal of wealth. This was stated by ‘Ali and Ibn ‘Abbaas 
    (may Allaah be pleased with them), but the scholars differed as to its 
    amount. Ibn Qudaamah (may Allaah have mercy on him) favoured the view that 
    what is meant is a large amount of wealth such that there is something left 
    over after the heirs are made independent of means, because the Prophet  
    (peace and blessings of Allaah be upon him) gave a reason for not allowing a 
    bequest of more than one-third (of one’s wealth), when he said: “If you 
    leave your heirs independent of means, that is better for them than leaving 
    them dependent and asking from people.” Narrated by al-Bukhaari (1296) and 
    Muslim (1628). See al-Mughni (8/391).

    This restriction (“if he leaves wealth (khayran = a lot of 
    wealth)”) is a condition of it being obligatory, as is clear. But the 
    state law ignores this condition, and gives them a share of the estate 
    whether the deceased left behind a large amount of wealth or not. 

    (ii)The word of Allaah 
    wa’l-aqrabeen (translated here as “and next of kin”) is general in 
    meaning and includes all relatives, so it includes grandchildren as well as 
    siblings and their children, paternal uncles and maternal uncles and their 
    children, and other relatives. Limiting it to grandchildren is another way 
    in which this law goes against this verse.

    (iii)The verse does not allocate a 
    specific amount to the binding will or define the share of the father or 
    anyone else. If a man bequeaths, say, one-sixth to his grandson, then he has 
    obeyed the command mentioned in the verse, but the state law does not regard 
    that as sufficient, rather it gives him the complete share which his father 
    would have got if he were alive, so long as it does not exceed one-third. 
    This is a third way in which this law goes against this verse.

    3 – The reason why this state law was introduced, according 
    to the memo, was repeated complaints about cases where a father died before 
    his parents, and his young children were left poor and needy, then the 
    grandfather died and their paternal uncles took the entire inheritance, 
    leaving these grandchildren poor when if their father had been alive, he 
    would have had a share of the inheritance. 

    If this is the reason why this law was introduced, then why 
    did the law give the grandchildren a share of the estate without stipulating 
    that they should be poor? Rather it gives them this share even if they are 
    well off, but it should have limited it to cases of need. 

    Shaykh Muhammad Abu Zahrah (may Allaah have mercy on him) 
    said (p. 244): In fact if we accept this obligation (binding will), we must 
    take into account whether people are in need, because wills or bequests come 
    under the same heading as charity, so it must be given to the poor. And 
    because the binding will takes precedence over anything else, the definition 
    of next-of-kin should be broader. End quote. 

    4 – The state law restricts the relatives who are entitled to 
    this bequest and binding will to the grandchildren only, and gives them 
    their father’s share. It may be understood from the law that this is the 
    view of Ibn Hazm (may Allaah have mercy on him), but this is not his view. 
    Ibn Hazm (may Allaah have mercy on him) did not single out the grandchildren 
    for this bequest, rather it should be for all the relatives apart from the 
    heirs, and the person should have bequeathed something to at least three of 
    his relatives, because this is the minimum plural. Moreover, Ibn Hazm did 
    not set a specific amount for the portion of the wealth that is bequeathed, 
    rather it may be whatever the deceased wished. If he did not bequeath 
    anything then the heirs are the ones who should determine the amount of 
    wealth they want to give to the relatives. 

    Ibn Hazm (may Allaah have mercy on him) said: If a person 
    dies without leaving a will, then charity must be given from it of whatever 
    amount is possible, and that is a must, because bequeathing something is 
    obligatory, as we have narrated, therefore it is obligatory to give away 
    something of his wealth after his death. And because the deceased no longer 
    has any control over his wealth, the heirs should give away some of the 
    wealth, and there is no limit to that except what the heirs or executor of 
    the will see fit, without being unfair to the heirs. It is obligatory for 
    every Muslim to bequeath something to those of his relatives who do not 
    inherit, either because they are slaves or kaafirs, or because there is 
    someone who prevents them from inheriting, or because they will not inherit, 
    then he may bequeath whatever he wants to them, and there is no limit to 
    that. But if he does not do that, they should be given what the heirs or 
    executor of the will see fit. End quote. 

    Al-Muhalla (8/351). 

    Thus Ibn Hazm clearly stated that there is no limit to this 
    bequest. 

    5 – This binding will or bequest which is dictated by state 
    law was not suggested by any scholar throughout fourteen centuries of 
    history, which is sufficient to indicate that this law is invalid, because 
    the Prophet  (peace and blessings of Allaah be upon him) said: “Allaah 
    will not cause my ummah to agree on misguidance.” Narrated by al-Tirmidhi 
    (2167) and classed as saheeh by al-Albaani in Saheeh al-Tirmidhi. 

    If this binding will or bequest in this form were correct, 
    why would the entire ummah have failed to act upon it until these latter-day 
    legislators came and tried to correct the injustice and unfairness 
    perpetrated by the imams, scholars and Muslims for fourteen centuries?! 

    6 – There are many cases in which, if a fair-minded person 
    thinks about it, he will realize that this law is invalid. For example: 

    (a)

    The grandchildren may be well off and their paternal uncles 
    (the sons of the deceased) may be poor, but in this case too the law would 
    give the grandchildren a share of the inheritance in the name of the binding 
    will, even though their paternal uncles are more entitled to this money than 
    they are, because they are closer to the deceased than them, and are in need 
    of it. 

    (b)

    Why does the state law care about the grandchildren and not 
    about the grandfathers and grandmothers who do not inherit, even though in 
    most cases they are in greater need and may be sick and unable to work, and 
    in need of medical treatment and maintenance? 

    Why does the law give something to the daughter’s daughter, 
    and not to the father’s mother, for example? 

    (c)

    The daughter’s daughter may take more than the son’s daughter 
    takes. If someone dies and leaves behind a daughter and a daughter of a 
    daughter who is deceased, and a daughter of a son, and he leaves behind 30 
    feddans for example, then according to the binding will, the daughter’s 
    daughter in this case gets one third of the estate or 10 feddans, which 
    would have been her mother’s share if she was alive. 

    And the daughter and son’s daughter get the rest at a ratio 
    of 1:3, so the son’s daughter gets five feddans, or half of what the 
    daughter’s daughter gets! 

    Even though the son’s daughter is more entitled to it. Hence 
    the scholars were unanimously agreed that the son’s daughter should inherit, 
    and that the daughter’s daughter does not inherit, so how can a non-heir be 
    given more than an heir, even though their relationship (to the deceased) is 
    of the same degree? 

    (d)

    The son’s daughter may take more than the daughter, because 
    if a person dies and leaves behind two daughters, the daughter of a deceased 
    son, and a sister, and he leaves behind 18 feddans for example, the amount 
    that the son’s daughter gets is one-third of the estate, which is 6 feddans, 
    and the rest is divided among the two daughters and the sister, with the two 
    daughters getting two-thirds, or 8 feddans, four each, and the sister 
    getting the remainder, which is four feddans!  

    This irregularity and contradiction points to human 
    imperfection and confirms the words of Allaah (interpretation of the 
    meaning): “Had it been from other than Allaah, they would surely, have 
    found therein many a contradiction” [al-Nisa’ 4:82].   

    The strongest objection to this state law is that it has in 
    fact become a kind of inheritance, hence the grandchildren take this share 
    even if the deceased did not bequeath anything to them, and they take it 
    regardless of whether he left a lot of money or a little, whether they are 
    poor or well off. All of this indicates that it has become like an 
    inheritance, and this is a rejection and change of the ruling of Allaah, may 
    He be exalted. 

    Secondly: 

    As for cases where they claim that they have introduced this 
    law as a remedy for poverty of the grandchildren, that may be solved in ways 
    that do not conflict with sharee’ah. 

    The best way is by teaching the rich that it is obligatory or 
    at least mustahabb for them to bequeath some of their wealth to their poor 
    relatives. 

    The second way, if he does not bequeath anything, is for the 
    heirs, if they are well off, to give the grandchildren or other poor 
    relatives some of this wealth, which will be an act of  charity and 
    upholding ties of kinship on their part. 

    By means of these two methods, this problem may be solved 
    without going against sharee’ah. 

    Thirdly: 

    With regard to taking money by means of this binding will and 
    bequest, it is haraam, because Allaah says (interpretation of the meaning): 

    “O you who believe! Eat not up your property among 
    yourselves unjustly”

    [al-Nisa’ 4:29]

    Consuming people’s wealth unjustly means taking it by means 
    other than those which are prescribed and make it permissible. 

    The Prophet  (peace and blessings of Allaah be upon him) 
    said: “Your blood, your wealth and your honour are sacred to you, as sacred 
    as this day of yours, in this month of yours, in this land of yours.” 
    Narrated by al-Bukhaari (67) and Muslim (1679). 

    We ask Allaah to bring the Muslim back to their religion. 

    And Allaah knows best.