Paying off a debt takes precedence over a bequest
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The bequest
Question: My wife’s mother vowed that if Allah were to take her, I would take charge of four sheep she owned during her lifetime, and make them a sacrifice for the sake of Allah the Exalted every year, and this would continue as long as the offspring of these sheep continued. She was taken by death and passed away four years ago. After her death, and while I was absent from the country, her husband took those sheep to his place, and I was unable to carry out anything of what she had instructed me to do. Does any sin attach to me or to her because of this, and what should be done now? Guide us, may Allah reward you.
Answer: This is a bequest, not a vow. A bequest is only valid for one-third or less of what the deceased left behind. Regarding what you mentioned about the husband’s actions and your inability to carry out what she instructed you to do, if you have proof of this bequest, either by a written document or by the testimony of two witnesses to this bequest and its issuance by the deceased during her lifetime, then you should present it to the judge in your area, and he will look into it and order what is obligatory, if Allah wills. And success is from Allah.
[Paying off a debt takes precedence over a bequest]
Question: I had a married sister who had two children. Her husband divorced her after she had fallen seriously ill. In the last month of her waiting period, she passed away, and she had many debts to the doctors who treated her and to others. She had nothing but a piece of land that does not cover all her debts; it only covers two-thirds of them. Before her death, she bequeathed that Hajj be performed on her behalf, that prayers be offered for her for three years, that three months of fasting be kept on her behalf, and that an animal be slaughtered for her after her death and a condolence feast be held. It is known that she has four full brothers and two sisters.What is the ruling first: Who is responsible for paying off the remaining debt? What is the ruling regarding her bequest? And what are we obligated to carry out from it? Please inform us about this, may Allah reward you with good.
Answer: As for the issue of the debts she owed, it is obligatory to pay them off from her estate. Established debts must be paid off from her estate, and there is no bequest except after the debts are paid; because paying off the debt takes precedence over the bequest.
As for the issue of her bequeathing bequests, including the condolence feast and slaughtering an animal, this is not permissible to fulfill, even if she left an estate; because this is a religious innovation, and it is not permissible to do it. The deceased woman’s wealth has transferred from her to the heirs, and in the case of the debts she owed, it has transferred to the creditors. If anything remains, it is for the heirs. The Lawgiver has permitted her to make a bequest within the limit of one-third and in the prescribed manner.
As for bequeathing the holding of a condolence feast, and the like of such religious innovations, this is not permissible to fulfill, and the bequest is not valid in such a case.
Likewise, the bequest that prayers be offered for her or that fasting be kept for her, this is also not carried out; because prayer and fasting are physical acts in which representation is not allowed.
However, if she had a vow of fasting, it is fasted on her behalf;As he (peace and blessings be upon him) said:Sahih Muslim 1147 .
and what is reported in Sahih Muslim from Ibn 'Abbas (may Allah be pleased with him and his father), who said:
So the fasting of a vow for the deceased is fasted by his guardian.
As for what is obligatory by the original Shari'ah, such as prayer and fasting, representation is not allowed in it; because it is a physical act.
Question: Who takes charge of paying off the remaining debt?
Answer: Regarding the bequest and looking into the debt, the judge should be consulted in such cases to assess the debts, prove them, and look into the bequest, distinguishing between what is valid and what is not, and to appoint someone to carry out and execute this work.
Question: My wife’s mother vowed that if Allah were to take her, I would take charge of four sheep she owned during her lifetime, and make them a sacrifice for the sake of Allah the Exalted every year, and this would continue as long as the offspring of these sheep continued. She was taken by death and passed away four years ago. After her death, and while I was absent from the country, her husband took those sheep to his place, and I was unable to carry out anything of what she had instructed me to do. Does any sin attach to me or to her because of this, and what should be done now? Guide us, may Allah reward you.
Answer: This is a bequest, not a vow. A bequest is only valid for one-third or less of what the deceased left behind. Regarding what you mentioned about the husband’s actions and your inability to carry out what she instructed you to do, if you have proof of this bequest, either by a written document or by the testimony of two witnesses to this bequest and its issuance by the deceased during her lifetime, then you should present it to the judge in your area, and he will look into it and order what is obligatory, if Allah wills. And success is from Allah.
[Paying off a debt takes precedence over a bequest]
Question: I had a married sister who had two children. Her husband divorced her after she had fallen seriously ill. In the last month of her waiting period, she passed away, and she had many debts to the doctors who treated her and to others. She had nothing but a piece of land that does not cover all her debts; it only covers two-thirds of them. Before her death, she bequeathed that Hajj be performed on her behalf, that prayers be offered for her for three years, that three months of fasting be kept on her behalf, and that an animal be slaughtered for her after her death and a condolence feast be held. It is known that she has four full brothers and two sisters.What is the ruling first: Who is responsible for paying off the remaining debt? What is the ruling regarding her bequest? And what are we obligated to carry out from it? Please inform us about this, may Allah reward you with good.
Answer: As for the issue of the debts she owed, it is obligatory to pay them off from her estate. Established debts must be paid off from her estate, and there is no bequest except after the debts are paid; because paying off the debt takes precedence over the bequest.
As for the issue of her bequeathing bequests, including the condolence feast and slaughtering an animal, this is not permissible to fulfill, even if she left an estate; because this is a religious innovation, and it is not permissible to do it. The deceased woman’s wealth has transferred from her to the heirs, and in the case of the debts she owed, it has transferred to the creditors. If anything remains, it is for the heirs. The Lawgiver has permitted her to make a bequest within the limit of one-third and in the prescribed manner.
As for bequeathing the holding of a condolence feast, and the like of such religious innovations, this is not permissible to fulfill, and the bequest is not valid in such a case.
Likewise, the bequest that prayers be offered for her or that fasting be kept for her, this is also not carried out; because prayer and fasting are physical acts in which representation is not allowed.
However, if she had a vow of fasting, it is fasted on her behalf;As he (peace and blessings be upon him) said:
'A'isha (Allah be pleased with her) reported Allah's Messenger (ﷺ) as saying: If anyone dies in a state (that he had to complete) some fasts, his heir must fast on his behalf.
من مات وعليه صيام، صام عنه وليهand what is reported in Sahih Muslim from Ibn 'Abbas (may Allah be pleased with him and his father), who said:
A woman came to the Messenger of Allah (peace and blessings be upon him) and said: O Messenger of Allah, my mother died and she had a vow of fasting. Should I fast on her behalf? He said: Do you think that if your mother had a debt and you paid it off, that would discharge it for her? She said: Yes. He said: Then fast on behalf of your mother.
جاءت امرأة إلى رسول الله صلى الله عليه وسلم فقالت: يا رسول الله إن أمي ماتت وعليها صوم نذر أفأصوم عنها؟ قال: أرأيت لو كان على أمك دين فقضيته أكان يؤدي ذلك عنها قالت: نعم. قال: فصومي عن أمك.So the fasting of a vow for the deceased is fasted by his guardian.
As for what is obligatory by the original Shari'ah, such as prayer and fasting, representation is not allowed in it; because it is a physical act.
Question: Who takes charge of paying off the remaining debt?
Answer: Regarding the bequest and looking into the debt, the judge should be consulted in such cases to assess the debts, prove them, and look into the bequest, distinguishing between what is valid and what is not, and to appoint someone to carry out and execute this work.