The ruling on bequeathing more than one-third to a non-heir
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Shaykh 'Abd al-'Aziz! The first message in this session came from Makkah al-Mukarramah—Al-'Aziziyah—and its sender is our brother Muhammad Fu'ad Saleh. He says: A man has a wife and no children, and he wants to bequeath some or all of his land to one of his nephews, to the exclusion of others, during his lifetime. His wife agrees to this and waives her share of the land in his favor. This man does not seek the consent of those who will inherit from him, such as his brother, his sister, his nephews, and the like. Will this bequest be executed according to the Shari'ah, or not?
Answer: In the name of Allah, the Most Gracious, the Most Merciful. Praise be to Allah, and may Allah send blessings and peace upon the Messenger of Allah, upon his family and his Companions, and upon those who follow his guidance.
The bequest is prescribed, as the noble Prophet (peace and blessings be upon him) said:Sahih Muslim 1627a It is agreed upon by al-Bukhari and Muslim.
So if he wants to bequeath to a non-heir, whether it is a nephew or otherwise, there is nothing wrong with it. As for a heir, it is not allowed; because of his saying (peace and blessings be upon him):Sunan Abi Dawud 2870Hasan Sahih (Al-Albani) So if the person to whom the bequest is made is not a heir, there is no objection to bequeathing to him one-third or less. It is not permissible to bequeath to him more than that unless the heirs give their permission. Yes.
The presenter: May Allah reward you. When is a bequest to a heir or to a non-heir executed, and when is it not executed?
The Shaykh: The bequest is executed when the testator dies. When the testator dies, it is executed in one-third or less, even if the heirs do not agree. It is obligatory to execute it from one-third of his estate or less. As for the heirs, their bequests are not executed unless their partners, who are of sound mind, consent. If they consent after the death, it is executed. Yes.
The presenter: Is it limited to a bequest of a specific thing, such as land and the like, or is it general?
The Shaykh: It is not limited; it applies to land and other things. Whenever the partners, who are of sound mind, agree, that is permissible. Yes.
The presenter: May Allah reward you.
Answer: In the name of Allah, the Most Gracious, the Most Merciful. Praise be to Allah, and may Allah send blessings and peace upon the Messenger of Allah, upon his family and his Companions, and upon those who follow his guidance.
The bequest is prescribed, as the noble Prophet (peace and blessings be upon him) said:
It is the duty of a Muslim who has something which is to be given as a bequest not to have it for two nights without having his will written down regarding it.
ما حق امرئ مسلم له شيء يريد أن يوصي فيه يبيت ليلتين إلا ووصيته مكتوبة عندهSo if he wants to bequeath to a non-heir, whether it is a nephew or otherwise, there is nothing wrong with it. As for a heir, it is not allowed; because of his saying (peace and blessings be upon him):
Allah has appointed for everyone who has a right what is due to him, and no bequest must be made to an heir.
إن الله قد أعطى كل ذي حق حقه، فلا وصية لوارثThe presenter: May Allah reward you. When is a bequest to a heir or to a non-heir executed, and when is it not executed?
The Shaykh: The bequest is executed when the testator dies. When the testator dies, it is executed in one-third or less, even if the heirs do not agree. It is obligatory to execute it from one-third of his estate or less. As for the heirs, their bequests are not executed unless their partners, who are of sound mind, consent. If they consent after the death, it is executed. Yes.
The presenter: Is it limited to a bequest of a specific thing, such as land and the like, or is it general?
The Shaykh: It is not limited; it applies to land and other things. Whenever the partners, who are of sound mind, agree, that is permissible. Yes.
The presenter: May Allah reward you.
Source
binbaz.org.sa
The Arabic text is copied verbatim from the original source, without any edits.