When must the heirs’ consent be given?

This is legal information only. For advice on your own circumstances, speak to a lawyer.

Where the four schools differ

This question turns on one issue in our madhhab register: When must the heirs’ consent be given? — if the heirs agree during the testator’s lifetime to a bequest that exceeds a third or that favours one of them, are they bound by it after he dies?

Position of each Sunni school on if the heirs agree during the testator’s lifetime to a bequest that exceeds a third or that favours one of them, are they bound by it after he dies?
School	Position
HanafiShafi’iHanbali	Only consent given after death counts. If the heirs approve during the testator’s lifetime — whether he is in health or in his last illness — and then refuse after he dies, the refusal stands. The reason is that they were purporting to give up something they did not yet own; Ibn Qudama compares it to a woman waiving her dower before the marriage, or a pre-emptor waiving pre-emption before the sale. He records Ahmad as stating this expressly, and names al-Shafi’i and Abu Hanifa with his companions as holding the same. Source: al-Mughni (Maktabat al-Qahira edition) — full Arabic text (Ibn Qudama al-Maqdisi (d. 620 AH)) — all three separately named in al-Mughni, fasl 4606, alongside the Hanbali rule it is stating.
Maliki	It depends when it was given. Malik distinguished: consent given while the testator was still in health may be withdrawn after his death, but consent given during his final illness — once he is already barred from freely disposing of his property — binds the heirs and they cannot go back on it. Sources: al-Mughni (Maktabat al-Qahira edition) — full Arabic text (Ibn Qudama al-Maqdisi (d. 620 AH)) · Bidayat al-Mujtahid wa Nihayat al-Muqtasid, vol. 2 — Book of Wasaya (bequests) and Book of Fara’id (inheritance), trans. Imran Ahsan Khan Nyazee (Ibn Rushd (Averroes, d. 595 AH)) — Malik named and quoted in al-Mughni; Ibn Rushd separately records that more than one view is transmitted within the Maliki school on a neighbouring sub-case.

Researched positions from our madhhab register — issue heirs-consent-timing, reviewed 2026-08-19.

What this means for a will drafted in Canada

This is the point the register’s one-third-cap entry flagged as unresearched. It is now researched, and the practical reading is conservative in every school: a consent letter signed by the family while the testator is alive is worth nothing on three of the four views, so a plan that depends on the heirs agreeing has to be built to survive one of them changing their mind.

Full positions, evidence and history: When must the heirs’ consent be given? — the issue page.

Which row is yours? Most families follow the school of their region of origin — the four madhahib page maps them. The comparison is here so you can see your school’s position, not so you can pick the convenient answer — assembling a plan from several schools at once (talfiq) can produce a distribution no school would accept. If your estate turns on this point, put it to a scholar of your school.

Questions that turn on this

Every answer below renders its madhhab position from this one entry, so the positions cannot drift apart between pages.

Citations & sources

Every factual claim on this page traces to a source below. Details change — check the original source before relying on any figure, fee or legal position.

Classical fiqh works

al-Mughni (Maktabat al-Qahira edition) — full Arabic text — Ibn Qudama al-Maqdisi (d. 620 AH)
Bidayat al-Mujtahid wa Nihayat al-Muqtasid, vol. 2 — Book of Wasaya (bequests) and Book of Fara’id (inheritance), trans. Imran Ahsan Khan Nyazee — Ibn Rushd (Averroes, d. 595 AH)