A man bequeathed one-third of his wealth as an endowment, but the bequest was lost and the estate was divided. After a period of time, the bequest was found. What is the ruling in this case?
Machine translationRead the Arabic original
The questioner : This questioner is from Qatar. He says: A man bequeathed one-third of his wealth as an endowment, but the bequest was lost and the estate was divided. After a period of time, the bequest was found. What is the ruling in this case? May Allah reward you.
The Shaykh : The ruling in this case is that one-third of each heir's share is taken, and the endowment is executed with it according to the terms of this bequest. This is if he bequeathed that one-third of his wealth be made an endowment, or if he bequeathed that one-third of his wealth be spent on the poor or something similar. However, if the endowment was a completed endowment (waqf najiz) and was made while he was in good health, then the entire endowment is executed. For example, if it was a piece of real estate.
The questioner : Yes.
The Shaykh : The heirs' hands are lifted from this real estate because it has been established that it is an endowment. Likewise, if it was land that he endowed to be a mosque, for example, then the land is taken from the heirs' hands and disposed of according to the conditions set by the endower.
At that point, we must know the difference between a bequest (wasiyyah) and a completed endowment (waqf najiz). A bequest is not established until after death. So if he bequeathed that his house be made an endowment, for example, the bequest is not executed until after his death, and it must not exceed one-third, nor can it be for any of the heirs. The testator has the right to revoke it and invalidate it, and he has the right to decrease it or increase it. But after death, only what is equal to one-third or less is executed.
As for the completed endowment (waqf najiz), it is executed immediately, and the endower does not have the right to dispose of it, nor is it possible for the endower to revoke it. It is executed even if it encompasses the entire wealth, except if it was made during his terminal illness, in which case only the amount of one-third is executed, meaning one-third of the estate. Yes.
The questioner : May Allah bless you.
The Shaykh : The ruling in this case is that one-third of each heir's share is taken, and the endowment is executed with it according to the terms of this bequest. This is if he bequeathed that one-third of his wealth be made an endowment, or if he bequeathed that one-third of his wealth be spent on the poor or something similar. However, if the endowment was a completed endowment (waqf najiz) and was made while he was in good health, then the entire endowment is executed. For example, if it was a piece of real estate.
The questioner : Yes.
The Shaykh : The heirs' hands are lifted from this real estate because it has been established that it is an endowment. Likewise, if it was land that he endowed to be a mosque, for example, then the land is taken from the heirs' hands and disposed of according to the conditions set by the endower.
At that point, we must know the difference between a bequest (wasiyyah) and a completed endowment (waqf najiz). A bequest is not established until after death. So if he bequeathed that his house be made an endowment, for example, the bequest is not executed until after his death, and it must not exceed one-third, nor can it be for any of the heirs. The testator has the right to revoke it and invalidate it, and he has the right to decrease it or increase it. But after death, only what is equal to one-third or less is executed.
As for the completed endowment (waqf najiz), it is executed immediately, and the endower does not have the right to dispose of it, nor is it possible for the endower to revoke it. It is executed even if it encompasses the entire wealth, except if it was made during his terminal illness, in which case only the amount of one-third is executed, meaning one-third of the estate. Yes.
The questioner : May Allah bless you.