A discretionary trust interest — is anything owned?

An estate is everything left of property and rights. These three schools define the tarikah, in the Mawsu’a’s words, as “everything the deceased leaves behind of property and established rights, without restriction”, and it says expressly that on this definition rights pass without qualification, usufructs among them. The proof offered is the Prophet’s words “whoever dies leaving property, his property goes to his heirs”, read as joining property and right together. The Mawsu’a then applies the definition to the hard class — financial rights that turn on the holder’s own choice, such as a right of pre-emption or an option in a sale — and records that on the majority view these are inherited. Applied to the question asked: even on this, the wider of the two definitions, what must exist is an established right. A claim that depends entirely on someone else deciding to confer it is not an established right of the deceased at all; it is not that these schools would count it and the Hanafis would not, but that the classical categories were built for rights their holder could assert, and this one cannot be asserted by anybody.

Sources: al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Tarikah” sec. 1 — the definition, split by school: “dhahaba jumhuru al-fuqaha’i — al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu — ila anna al-tarikata: hiya kullu ma yukhallifuhu al-mayyitu mina’l-amwali wa’l-huquqi al-thabitati mutlaqan”, against “wa dhahaba al-Hanafiyyatu ila anna al-tarikata: hiya ma yatrukuhu al-mayyitu mina’l-amwali safiyan ‘an ta‘alluqi haqqi al-ghayri bi-‘aynih”; and the express note that usufructs (al-manafi‘) enter the estate for the majority but not for the Hanafis, who confine it to property or a right connected to property (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Tarikah” sec. 2–3 — “dhahaba jumhuru al-fuqaha’i (al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu) ila anna al-tarikata tashmalu jami‘a ma tarakahu al-mutawaffa min amwalin wa huquq”, on the Prophet’s words “man mata wa taraka malan fa-maluhu li-mawali al-‘asaba” joining property and right together; and the definition of irth as “haqqun qabilun li’l-tajazzu’i yathbutu li-mustahiqqihi ba‘da mawti man kana lahu dhalik” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Tarikah” sec. 3 cont. — the four classes of right and which of them pass: (a) non-financial personal rights, never inherited; (b) financial rights attaching to the deceased’s own person — a donor’s right to revoke his gift, a right to use a specific thing belonging to another — also not inherited; (c) financial rights that turn on the deceased’s own will and choice (pre-emption, the options in a sale): “wa hiya tuurathu ‘inda al-jumhur. Wa dhahaba al-Hanafiyyatu ila annaha la tuurath”; (d) financial rights attaching to the deceased’s property rather than to his person or will: “wa hadhihi huququn tuurathu ‘anhu bi-la khilafin bayna al-fuqaha’” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Tarikah” sec. 4 — “fa-yadkhulu fi’l-tarikati ma kana li’l-insani hala hayatihi, wa khallafahu ba‘da mamatihi, min malin aw huquqin aw ’khtisas”; a usufruct bequeathed to a person passes to his own heirs unless it was limited to his lifetime; and the Shafi‘i addition that the estate includes what entered his ownership after death by a cause he set up in life — game falling into a net he had set (Ministry of Awqaf and Islamic Affairs, Kuwait) — the three schools are named individually inside the word “jumhur” at both the definition locus (sec. 1) and the scope locus (sec. 3), so no school here is carried by another’s citation.

An estate is property, clear of anyone else’s claim on the thing. The Hanafi definition is narrower in two directions at once. It is confined to property, or to a right that has a connection to property, so bare usufructs do not enter the estate as they do for the majority. And it takes in only what the deceased left “clear of another’s right attaching to the thing itself”. On the class of financial rights that turn on the holder’s own will and choice — pre-emption, the options in a sale — the Hanafis part from the majority and say plainly that they are not inherited. Applied to the question asked: the Hanafi definition is the harder of the two for a discretionary interest to satisfy, and it fails it on both limbs — there is no property in the beneficiary’s hands, and the fund is encumbered by the trustee’s own power over the thing.

Sources: al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Tarikah” sec. 1 — the definition, split by school: “dhahaba jumhuru al-fuqaha’i — al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu — ila anna al-tarikata: hiya kullu ma yukhallifuhu al-mayyitu mina’l-amwali wa’l-huquqi al-thabitati mutlaqan”, against “wa dhahaba al-Hanafiyyatu ila anna al-tarikata: hiya ma yatrukuhu al-mayyitu mina’l-amwali safiyan ‘an ta‘alluqi haqqi al-ghayri bi-‘aynih”; and the express note that usufructs (al-manafi‘) enter the estate for the majority but not for the Hanafis, who confine it to property or a right connected to property (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Tarikah” sec. 2–3 — “dhahaba jumhuru al-fuqaha’i (al-Malikiyyatu wa’l-Shafi‘iyyatu wa’l-Hanabilatu) ila anna al-tarikata tashmalu jami‘a ma tarakahu al-mutawaffa min amwalin wa huquq”, on the Prophet’s words “man mata wa taraka malan fa-maluhu li-mawali al-‘asaba” joining property and right together; and the definition of irth as “haqqun qabilun li’l-tajazzu’i yathbutu li-mustahiqqihi ba‘da mawti man kana lahu dhalik” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Tarikah” sec. 3 cont. — the four classes of right and which of them pass: (a) non-financial personal rights, never inherited; (b) financial rights attaching to the deceased’s own person — a donor’s right to revoke his gift, a right to use a specific thing belonging to another — also not inherited; (c) financial rights that turn on the deceased’s own will and choice (pre-emption, the options in a sale): “wa hiya tuurathu ‘inda al-jumhur. Wa dhahaba al-Hanafiyyatu ila annaha la tuurath”; (d) financial rights attaching to the deceased’s property rather than to his person or will: “wa hadhihi huququn tuurathu ‘anhu bi-la khilafin bayna al-fuqaha’” (Ministry of Awqaf and Islamic Affairs, Kuwait) — Hanafi named in its own sentence at each of the three loci.