Is it permissible to use a trust in an Islamic estate plan?

It becomes nobody’s property. On the definition of Abu Yusuf and Muhammad, a waqf is the detention of the corpus on the footing of God’s ownership with its benefit directed where the founder wishes. The Mawsu’a shows the consequence through zakat: no zakat is payable on waqf livestock “because there is no ownership” — and zakat is a transfer of ownership, which cannot be imagined where there is none. Abu Hanifa himself took the opposite view, defining waqf as detention on the footing of the founder’s ownership and holding that a waqf is permissible but not binding, so that the founder may take it back in his lifetime and it is inherited from him — binding only if a judge so rules or if it is cast as a bequest. The Mawsu’a records that the school did not follow him on that point: “the fatwa among the Hanafis is on the position of Abu Yusuf and Muhammad, which is bindingness”, and Ibn ‘Abidin quotes al-Fath, “the truth is to prefer the position of the generality of the scholars that it is binding”, because the reports are overwhelming and the practice of the Companions and those after them was settled on it.

Sources: al-Mawsu’a al-Fiqhiyya, “Waqf” sec. 74 — “zakatu al-‘ayni al-mawqufati yanbani ‘ala ’khtilafi al-fuqaha’i fi milki raqabati al-‘ayni al-mawqufa”, and the Hanafi position: “yaqulu al-Hanafiyyatu: la tajibu al-zakatu fi sawa’imi al-waqfi wa’l-khayli al-musabbalati li-‘adami al-milk”; also, earlier on the page, that a sick man’s waqf exceeding the third which the heirs do not ratify is void as to the excess and “yusbihu milkan li’l-waratha” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Waqf” sec. 1 — the four definitions side by side: Hanafi (the two companions) “habsu al-‘ayni ‘ala hukmi milki ’llahi ta‘ala wa sarfu manfa‘atiha ‘ala man ahabb”, and Abu Hanifa’s “habsu al-‘ayni ‘ala hukmi milki al-waqifi wa’l-tasadduqu bi’l-manfa‘a”; Ibn ‘Arafa (Maliki) “i‘ta’u manfa‘ati shay’in muddata wujudihi laziman baqa’uhu fi milki mu‘tihi wa law taqdiran”; Shafi‘i “habsu malin yumkinu al-intifa‘u bihi ma‘a baqa’i ‘aynihi bi-qat‘i al-tasarrufi fi raqabatih”; Hanbali “tahbisu malikin mutlaqi al-tasarrufi malahu al-muntafa‘a bihi ma‘a baqa’i ‘aynihi bi-qat‘i tasarrufihi wa ghayrihi fi raqabatih” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Waqf” sec. 15 cont. — the consequence: the founder’s right to deal with the corpus is cut off, “fa-la yuba‘u wa la yuhabu wa la yurath”, on the Prophet’s words to ‘Umar “tasaddaq bi-aslihi, la yuba‘u wa la yuhabu wa la yurath” (al-Bukhari, Fath al-Bari 5/392); and Abu Hanifa’s contrary view that waqf is permissible but not binding, the founder may revoke it in his lifetime, “wa yurathu ‘anhu” — with the note that the fatwa in the Hanafi school follows Abu Yusuf and Muhammad, i.e. bindingness (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Waqf” sec. 15 — luzum al-waqf: “ikhtalafa al-fuqaha’u fi luzumi al-waqf, fa-dhahaba jumhuru al-fuqaha’i al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu fi’l-madhhabi wa Abu Yusufa wa Muhammadun mina’l-Hanafiyyati ila anna al-waqfa mata sadara mimman huwa ahlun li’l-tasarrufi mustakmilan shara’itahu asbaha laziman” (Ministry of Awqaf and Islamic Affairs, Kuwait) — Hanafi named on its own page for the ownership point, and again for both definitions and for the internal disagreement on bindingness.

It becomes God’s. The Shafi’i definition is the detention of property that can be used while its substance survives, by cutting off any dealing in the corpus, for a lawful and existing object. On the question of who then owns the corpus, the Mawsu’a records the sounder view as being that the ownership of the corpus belongs to God Most High, so no zakat is due on it, exactly as for a waqf to an open charitable class, which carries no zakat “without disagreement, because it has no determinate owner”. The competing Shafi’i view gives the corpus to the beneficiary, but even then describes what he has as weak ownership — the proof being that he cannot deal in the corpus at all. The school is also among the strictest on irrevocability: al-Nawawi holds that a waqf made with a reserved option, or reserving a power to sell it or take it back whenever the founder likes, is simply void.

Sources: al-Mawsu’a al-Fiqhiyya, “Waqf” sec. 74 cont. — Shafi‘i: on the sounder view “anna al-milka fi raqabati al-mawqufi li’llahi ta‘ala”, the alternative being that it belongs to the beneficiary but is “milku da‘ifin bi-dalili annahu la yamliku al-tasarrufa fi raqabatih”; and Maliki: “wa ‘inda al-Malikiyyati yakunu al-mawqufu ‘ala milki al-waqifi wa ‘ala dhalika fa-zakatuhu ‘ala’l-waqif” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Waqf” sec. 1 — the four definitions side by side: Hanafi (the two companions) “habsu al-‘ayni ‘ala hukmi milki ’llahi ta‘ala wa sarfu manfa‘atiha ‘ala man ahabb”, and Abu Hanifa’s “habsu al-‘ayni ‘ala hukmi milki al-waqifi wa’l-tasadduqu bi’l-manfa‘a”; Ibn ‘Arafa (Maliki) “i‘ta’u manfa‘ati shay’in muddata wujudihi laziman baqa’uhu fi milki mu‘tihi wa law taqdiran”; Shafi‘i “habsu malin yumkinu al-intifa‘u bihi ma‘a baqa’i ‘aynihi bi-qat‘i al-tasarrufi fi raqabatih”; Hanbali “tahbisu malikin mutlaqi al-tasarrufi malahu al-muntafa‘a bihi ma‘a baqa’i ‘aynihi bi-qat‘i tasarrufihi wa ghayrihi fi raqabatih” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Waqf” sec. 17, al-ruju‘ fi’l-waqf — “dhahaba al-fuqaha’u ila anna al-waqfa mata asbaha laziman fa-la yajuzu al-ruju‘u fih, fa-la yuba‘u wa la yurhanu wa la yuhabu wa la yurath”; and the Hanbali and (sounder) Shafi‘i rule that a waqf reserving a power to revoke is void, al-Nawawi being quoted that reserving an option or a power to sell or take it back makes it “batil” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Waqf” sec. 15 — luzum al-waqf: “ikhtalafa al-fuqaha’u fi luzumi al-waqf, fa-dhahaba jumhuru al-fuqaha’i al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu fi’l-madhhabi wa Abu Yusufa wa Muhammadun mina’l-Hanafiyyati ila anna al-waqfa mata sadara mimman huwa ahlun li’l-tasarrufi mustakmilan shara’itahu asbaha laziman” (Ministry of Awqaf and Islamic Affairs, Kuwait) — Shafi‘i named separately at the ownership locus, at the definitions, and at the revocation locus.

It stays, formally, with the founder — and still leaves the estate. Ibn ‘Arafa’s definition is the giving of the benefit of a thing for as long as it lasts, its remaining in the giver’s ownership being obligatory, even if only notionally. The Mawsu’a confirms the practical consequence: for the Malikis waqf property stays on the founder’s ownership, so it is he who pays the zakat on it. That formal retention does not soften the effect, because the Malikis are in the majority that holds a waqf binding the moment it is validly made, after which it cannot be sold, pledged, given away or inherited. The Malikis are, however, the school least attached to perpetuity: they do not make it a condition of validity, so a waqf for a fixed term is good.

Sources: al-Mawsu’a al-Fiqhiyya, “Waqf” sec. 74 cont. — Shafi‘i: on the sounder view “anna al-milka fi raqabati al-mawqufi li’llahi ta‘ala”, the alternative being that it belongs to the beneficiary but is “milku da‘ifin bi-dalili annahu la yamliku al-tasarrufa fi raqabatih”; and Maliki: “wa ‘inda al-Malikiyyati yakunu al-mawqufu ‘ala milki al-waqifi wa ‘ala dhalika fa-zakatuhu ‘ala’l-waqif” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Waqf” sec. 1 — the four definitions side by side: Hanafi (the two companions) “habsu al-‘ayni ‘ala hukmi milki ’llahi ta‘ala wa sarfu manfa‘atiha ‘ala man ahabb”, and Abu Hanifa’s “habsu al-‘ayni ‘ala hukmi milki al-waqifi wa’l-tasadduqu bi’l-manfa‘a”; Ibn ‘Arafa (Maliki) “i‘ta’u manfa‘ati shay’in muddata wujudihi laziman baqa’uhu fi milki mu‘tihi wa law taqdiran”; Shafi‘i “habsu malin yumkinu al-intifa‘u bihi ma‘a baqa’i ‘aynihi bi-qat‘i al-tasarrufi fi raqabatih”; Hanbali “tahbisu malikin mutlaqi al-tasarrufi malahu al-muntafa‘a bihi ma‘a baqa’i ‘aynihi bi-qat‘i tasarrufihi wa ghayrihi fi raqabatih” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Waqf” sec. 15 — luzum al-waqf: “ikhtalafa al-fuqaha’u fi luzumi al-waqf, fa-dhahaba jumhuru al-fuqaha’i al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu fi’l-madhhabi wa Abu Yusufa wa Muhammadun mina’l-Hanafiyyati ila anna al-waqfa mata sadara mimman huwa ahlun li’l-tasarrufi mustakmilan shara’itahu asbaha laziman” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Waqf” sec. 19 cont. — “al-ra’yu al-thani: dhahaba al-Malikiyyatu wa’l-Hanabilatu fi wajhin ila annahu la yushtaratu al-ta’bidu li-sihhati al-waqf, fa-yasihhu al-waqfu muddatan mu‘ayyana”; and, within the first view, the internal split over a waqf the founder limits to a month or a year (Ministry of Awqaf and Islamic Affairs, Kuwait) — Maliki named in its own sentence at the ownership locus (“wa ‘inda al-Malikiyyati...”), and again at the definitions, the bindingness locus and the perpetuity locus.

It passes to the beneficiary. The Hanbali definition is the detention by an owner of free disposal of property that can be used while its substance survives, cutting off his own and everyone else’s dealing in the corpus, its yield going to a charitable purpose in seeking nearness to God. On who owns the corpus the Mawsu’a is direct: the Hanbalis say ownership in the waqf property belongs to the beneficiary, so a named beneficiary pays zakat on waqf livestock “because ownership passes to the beneficiary on the madhhab” — though some Hanbalis exempt him because the ownership is weak, and nothing is due where the beneficiaries are an open class such as the poor. The school holds waqf binding on the words alone, comparing it to manumission rather than to gift; a narration from Ahmad requires delivery out of the founder’s hands as well.

Sources: al-Mawsu’a al-Fiqhiyya, “Waqf” sec. 74 cont. — “wa qala al-Hanabilatu: inna al-milka fi’l-mawqufi yakunu li’l-mawqufi ‘alayh”, so a named beneficiary pays the zakat on waqf livestock “li-anna al-milka yantaqilu li’l-mawqufi ‘alayhi ‘ala’l-madhhab”, some Hanbalis exempting it “li-du‘fi al-milk”; nothing is due where the beneficiary is an open class (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Waqf” sec. 1 — the four definitions side by side: Hanafi (the two companions) “habsu al-‘ayni ‘ala hukmi milki ’llahi ta‘ala wa sarfu manfa‘atiha ‘ala man ahabb”, and Abu Hanifa’s “habsu al-‘ayni ‘ala hukmi milki al-waqifi wa’l-tasadduqu bi’l-manfa‘a”; Ibn ‘Arafa (Maliki) “i‘ta’u manfa‘ati shay’in muddata wujudihi laziman baqa’uhu fi milki mu‘tihi wa law taqdiran”; Shafi‘i “habsu malin yumkinu al-intifa‘u bihi ma‘a baqa’i ‘aynihi bi-qat‘i al-tasarrufi fi raqabatih”; Hanbali “tahbisu malikin mutlaqi al-tasarrufi malahu al-muntafa‘a bihi ma‘a baqa’i ‘aynihi bi-qat‘i tasarrufihi wa ghayrihi fi raqabatih” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Waqf” sec. 15 — luzum al-waqf: “ikhtalafa al-fuqaha’u fi luzumi al-waqf, fa-dhahaba jumhuru al-fuqaha’i al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu fi’l-madhhabi wa Abu Yusufa wa Muhammadun mina’l-Hanafiyyati ila anna al-waqfa mata sadara mimman huwa ahlun li’l-tasarrufi mustakmilan shara’itahu asbaha laziman” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Waqf” sec. 15 cont. — the consequence: the founder’s right to deal with the corpus is cut off, “fa-la yuba‘u wa la yuhabu wa la yurath”, on the Prophet’s words to ‘Umar “tasaddaq bi-aslihi, la yuba‘u wa la yuhabu wa la yurath” (al-Bukhari, Fath al-Bari 5/392); and Abu Hanifa’s contrary view that waqf is permissible but not binding, the founder may revoke it in his lifetime, “wa yurathu ‘anhu” — with the note that the fatwa in the Hanafi school follows Abu Yusuf and Muhammad, i.e. bindingness (Ministry of Awqaf and Islamic Affairs, Kuwait) — Hanbali named in its own sentence at the ownership locus (“wa qala al-Hanabilatu...”), and again at the definitions and both bindingness loci.