Making a wasiyyah — form, capacity and revocation

Adulthood is a condition, and a document on its own proves nothing. Both schools require the testator to be baligh as well as of sound mind, so a minor’s bequest is void — a discerning minor’s too, and even one licensed to trade, because a bequest is a pure giving-away and not commerce. Both treat a person drunk by his own fault as still bound by the law, so his bequest stands. Both void the bequest of anyone coerced, joking or mistaken, since those destroy the consent the instrument runs on. Neither requires writing: a spoken wasiyyah is good, and a written one carries the same effect — the Shafi’is treating the writing as an allusive expression, so that the intention behind it has to be avowed aloud or acknowledged by the heirs. What neither accepts is proof by handwriting alone: “the wasiyyah is not established by bare handwriting in the Hanafi school or the Shafi’i school, because of the possibility of forgery and the resemblance of hands”. Witnesses to a written will must have heard its contents from the testator, or have had it read back to him and heard him acknowledge it. And Abu Hanifa and al-Shafi’i are both named as refusing non-Muslim witnesses to a will, even where no Muslim can be found. They diverge on one point: the Shafi’is accept the intelligible gesture of a testator whose speech has failed, where the Hanafi fatwa position does not unless there is no hope of his speaking again.

Sources: al-Mawsu’a al-Fiqhiyya, “Wasiyya” sec. 18, al-rukn al-thani: al-musi — “ittafaqa al-fuqaha’u ‘ala ishtirati al-‘aql” (the jurists agreed on requiring sound mind), and on bulugh: the Hanafis, the Shafi’is in the madhhab and the Hanbalis in one report require it, so a minor’s bequest fails; the Malikis, the Hanbalis in the madhhab and the Shafi’is in a qawl allow the bequest of a mumayyiz, on ‘Umar’s having allowed the bequest of a ten-year-old boy of Ghassan (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” — the bequest of an intoxicated person: three positions, the Hanafis and Shafi’is holding it valid where the drunkenness was his own fault (“li-anna sukrahu bi-muharramin la yubtilu taklifah”), the Hanbalis holding it void as he is then not ‘aqil and resembles the insane, and the Malikis making it turn on whether he was discerning when he made it (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” secs. 19–20 — “ittafaqa al-fuqaha’u ‘ala ishtirati al-hurriyya”, and: the testator must be “radiyan mukhtaran… fa-la tasihhu wasiyyatu al-mukrahi wa’l-hazili wa’l-mukhti’i li-anna hadhihi al-‘awarida tufawwitu al-rida” (the bequest of one coerced, joking or mistaken is invalid, because these destroy consent); footnoted to Bada’i‘ 7/335 (Hanafi), Mughni al-Muhtaj (Shafi’i) and al-Sharh al-Saghir (Maliki) (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Wasiyya”, al-rukn al-awwal: al-sigha — “wa-tan‘aqidu al-wasiyyatu bi’l-kitabati ka’l-lafzi bi’ttifaqi al-fuqaha’” (a wasiyyah is concluded by writing just as by speech, by the agreement of the jurists), with the Shafi’i qualification that writing is a kinaya needing the intention avowed, and the Hanbali condition that the document be in the testator’s own established hand; and the jumhur (Hanafi, Shafi’i, Hanbali) refusal of a gesture from one able to speak (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” sec. 86, “Turuqu ithbati al-wasiyya” — “wa-la tathbutu al-wasiyyatu bi’l-khatti al-mujarradi ‘inda al-Hanafiyyati wa-la ‘inda al-Shafi‘iyyati li-imkani al-tazwiri wa-tashabuhi al-khutut” (the wasiyyah is not established by bare handwriting for the Hanafis or the Shafi’is, forgery being possible and hands resembling one another); witnesses must have heard the contents or had them read back and acknowledged; and the Maliki rule that a document in the testator’s hand is proved where he called witnesses to it, even sealed and unread, but is not executed where he did not (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” — “wa-dhahaba al-Malikiyyatu ila in‘iqadi al-wasiyyati bi’l-ishara mina al-qadiri ‘ala al-kalam” (the Malikis hold a wasiyyah concluded by gesture even from one able to speak); and, on the testator whose tongue has failed, the Hanafi (fatwa view), Maliki and Hanbali refusal unless there is no hope of speech, against the Shafi’i acceptance (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Jaziri, al-Fiqh ‘ala al-Madhahib al-Arba‘a, “Arkan al-wasiyya wa-shurutuha”, HANAFI section (vol. 3 pp. 279–280) — the testator must be baligh (“fa-la tasihhu wasiyyatu al-saghir”), ‘aqil, not indebted beyond his estate, and “an la yakuna hazilan wa-la mukhti’an wa-la mukrahan”; and that where speech has permanently failed “fa-isharatuhu wa-kitabatuhu ka’l-nutq” (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Mughni, Kitab al-Shahadat, mas’ala 8373 — al-Khiraqi: “wa-tajuzu shahadatu al-kuffari min ahli al-kitabi fi’l-wasiyyati fi’l-safari idha lam yakun ghayruhum”, against which “qala Abu Hanifata wa-Malikun wa’l-Shafi‘iyyu: la tuqbal” (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Jaziri, “Arkan al-wasiyya”, SHAFI‘I section (vol. 3 p. 284) — “yushtaratu fi’l-musi an [yakuna] balighan ‘aqilan hurran mukhtaran, fa-la tasihhu wasiyyatu al-sabiyyi wa’l-majnuni wa’l-mughma ‘alayh”; the culpably drunk is treated as mukallaf and his dispositions stand; “kama la tasihhu wasiyyatu al-mukrah” (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) — each school separately named at every point: the Kuwaiti Mawsu’a on bulugh, intoxication, coercion and proof; al-Jaziri’s Hanafi and Shafi’i lists of conditions set out separately; Abu Hanifa and al-Shafi’i separately named in al-Mughni on non-Muslim witnesses.

Discernment is the gate, and the pivot is calling witnesses. Majority is not a condition — al-Jaziri states it flatly, “so bulugh is not a condition”. What is required is that the maker be mumayyiz: the bequest of a madman, a child or a drunk fails only where discernment was absent when it was made, so a drunk who still knew what he was doing binds himself and one who did not does not. A boy of about ten or under may make one if he grasped the point of it and was not confused; the school is internally divided over whether a child’s bequest is good generally or only for a pious purpose. Interdiction for prodigality is no bar. Alone among the four, this school lets a wasiyyah be made by an intelligible gesture even from someone perfectly able to speak. Its rule on documents turns on attestation rather than reading: a will in the testator’s own hand is proved where he called witnesses to it, even if he never read it to them and never opened the sealed paper — but where he did not call them to witness it, or tell them to carry it out, it is not executed after his death, because he may have revoked it since. al-Tasuli puts the point at its strongest: “calling witnesses to gratuitous instruments such as the wasiyyah is a condition of their validity, and the attestation is either written or oral”. Malik is named as refusing non-Muslim witnesses to a will.

Sources: al-Mawsu’a al-Fiqhiyya, “Wasiyya” sec. 18, al-rukn al-thani: al-musi — “ittafaqa al-fuqaha’u ‘ala ishtirati al-‘aql” (the jurists agreed on requiring sound mind), and on bulugh: the Hanafis, the Shafi’is in the madhhab and the Hanbalis in one report require it, so a minor’s bequest fails; the Malikis, the Hanbalis in the madhhab and the Shafi’is in a qawl allow the bequest of a mumayyiz, on ‘Umar’s having allowed the bequest of a ten-year-old boy of Ghassan (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” — the Maliki threshold for the mumayyiz whose bequest stands (about ten or under, “idha asaba wajha al-wasiyyati wa-lam yakun fihi ikhtilat”) and al-Mardawi’s Hanbali gradation (sound past ten; void under seven; two reports between, the madhhab being that it is sound); and the bequest of one interdicted for sfah (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” — the bequest of an intoxicated person: three positions, the Hanafis and Shafi’is holding it valid where the drunkenness was his own fault (“li-anna sukrahu bi-muharramin la yubtilu taklifah”), the Hanbalis holding it void as he is then not ‘aqil and resembles the insane, and the Malikis making it turn on whether he was discerning when he made it (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” — “wa-dhahaba al-Malikiyyatu ila in‘iqadi al-wasiyyati bi’l-ishara mina al-qadiri ‘ala al-kalam” (the Malikis hold a wasiyyah concluded by gesture even from one able to speak); and, on the testator whose tongue has failed, the Hanafi (fatwa view), Maliki and Hanbali refusal unless there is no hope of speech, against the Shafi’i acceptance (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” sec. 86, “Turuqu ithbati al-wasiyya” — “wa-la tathbutu al-wasiyyatu bi’l-khatti al-mujarradi ‘inda al-Hanafiyyati wa-la ‘inda al-Shafi‘iyyati li-imkani al-tazwiri wa-tashabuhi al-khutut” (the wasiyyah is not established by bare handwriting for the Hanafis or the Shafi’is, forgery being possible and hands resembling one another); witnesses must have heard the contents or had them read back and acknowledged; and the Maliki rule that a document in the testator’s hand is proved where he called witnesses to it, even sealed and unread, but is not executed where he did not (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” — al-Tasuli (Maliki): “inna al-ishhada ‘ala ‘uqudi al-tabarru‘ati ka’l-wasiyyati SHARTUN fi sihhatiha, wa’l-ishhadu imma kitabiyyun aw shafawiyy”; and the Hanbali preponderant view “man kataba wasiyyatan wa-lam yushhid ‘alayha hukima biha ma lam yu‘lam ruju‘uhu ‘anha” on handwriting proved by the heirs’ acknowledgement or by evidence identifying his hand (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Jaziri, “Arkan al-wasiyya”, MALIKI section (vol. 3 p. 282) — the testator must be free and “an yakuna mumayyizan fa-la tasihhu wasiyyatu al-majnuni wa’l-saghiri wa’l-sakrani IDHA FAQADU AL-TAMYIZA waqta al-isa’; FA’L-BULUGHU GHAYRU SHART”, with prodigality no bar and an internal dispute over whether a child’s bequest must be for a pious purpose (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Jaziri, “Arkan al-wasiyya”, MALIKI section on the sigha (vol. 3 p. 283) — the form may be explicit or understood from context, “wa-mithlu al-lafzi al-isharatu al-mufhimatu wa-law kana al-musi qadiran ‘ala al-nutq” (an intelligible gesture is like speech even from one able to speak) (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Mughni, Kitab al-Shahadat, mas’ala 8373 — al-Khiraqi: “wa-tajuzu shahadatu al-kuffari min ahli al-kitabi fi’l-wasiyyati fi’l-safari idha lam yakun ghayruhum”, against which “qala Abu Hanifata wa-Malikun wa’l-Shafi‘iyyu: la tuqbal” (Ibn Qudama al-Maqdisi (d. 620 AH)) — al-Jaziri’s Maliki section for the tamyiz rule and the gesture; the Kuwaiti Mawsu’a’s Maliki paragraphs for the age threshold, the drunk, the sealed document and al-Tasuli; Malik separately named in al-Mughni on non-Muslim witnesses.

Discernment is the gate, and a will in the deceased’s own hand stands by itself. Majority is not a condition: “as for bulugh, it is not a condition, so [a bequest] is valid from a discerning minor”, al-Mardawi recording it as sound past ten, void below seven, with two reports in between and the madhhab holding it good. Sound mind is required, and this school counts even the culpably drunk as outside it: “the drunk is attached to the madman, and his bequest is not valid”. On form it is the most permissive of the four about the document and the least about gestures — a testator whose speech has failed cannot bequeath by signs unless recovery is hopeless — and al-Khiraqi’s text is that “whoever writes a will and does not have it witnessed, judgment is given by it, so long as his revoking it is not known”: Ahmad’s own ruling was that where a man dies and his will is found written at his head, unwitnessed, in a hand known to be his, what is in it is accepted, because the Prophet’s words speak of the will being written and add nothing further. A second report from Ahmad refuses handwriting and lines the school up with the other three; the preponderant position is the first. Writing and attestation stay recommended rather than required — “it is recommended that the testator write his will and have it witnessed, because that better preserves it”. And alone among the four, this school accepts two non-Muslim witnesses to the will of a traveller who dies away from home where no Muslim is to be had, on Surah al-Ma’idah 5:106.

Sources: al-Mawsu’a al-Fiqhiyya, “Wasiyya” sec. 18, al-rukn al-thani: al-musi — “ittafaqa al-fuqaha’u ‘ala ishtirati al-‘aql” (the jurists agreed on requiring sound mind), and on bulugh: the Hanafis, the Shafi’is in the madhhab and the Hanbalis in one report require it, so a minor’s bequest fails; the Malikis, the Hanbalis in the madhhab and the Shafi’is in a qawl allow the bequest of a mumayyiz, on ‘Umar’s having allowed the bequest of a ten-year-old boy of Ghassan (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” — the Maliki threshold for the mumayyiz whose bequest stands (about ten or under, “idha asaba wajha al-wasiyyati wa-lam yakun fihi ikhtilat”) and al-Mardawi’s Hanbali gradation (sound past ten; void under seven; two reports between, the madhhab being that it is sound); and the bequest of one interdicted for sfah (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” — the bequest of an intoxicated person: three positions, the Hanafis and Shafi’is holding it valid where the drunkenness was his own fault (“li-anna sukrahu bi-muharramin la yubtilu taklifah”), the Hanbalis holding it void as he is then not ‘aqil and resembles the insane, and the Malikis making it turn on whether he was discerning when he made it (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Wasiyya”, al-rukn al-awwal: al-sigha — “wa-tan‘aqidu al-wasiyyatu bi’l-kitabati ka’l-lafzi bi’ttifaqi al-fuqaha’” (a wasiyyah is concluded by writing just as by speech, by the agreement of the jurists), with the Shafi’i qualification that writing is a kinaya needing the intention avowed, and the Hanbali condition that the document be in the testator’s own established hand; and the jumhur (Hanafi, Shafi’i, Hanbali) refusal of a gesture from one able to speak (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” — “wa-dhahaba al-Malikiyyatu ila in‘iqadi al-wasiyyati bi’l-ishara mina al-qadiri ‘ala al-kalam” (the Malikis hold a wasiyyah concluded by gesture even from one able to speak); and, on the testator whose tongue has failed, the Hanafi (fatwa view), Maliki and Hanbali refusal unless there is no hope of speech, against the Shafi’i acceptance (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Wasiyya” — al-Tasuli (Maliki): “inna al-ishhada ‘ala ‘uqudi al-tabarru‘ati ka’l-wasiyyati SHARTUN fi sihhatiha, wa’l-ishhadu imma kitabiyyun aw shafawiyy”; and the Hanbali preponderant view “man kataba wasiyyatan wa-lam yushhid ‘alayha hukima biha ma lam yu‘lam ruju‘uhu ‘anha” on handwriting proved by the heirs’ acknowledgement or by evidence identifying his hand (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Jaziri, “Arkan al-wasiyya”, HANBALI section (vol. 3 p. 286) — “an yakuna ‘aqilan… wa-yulhaqu bi’l-majnuni al-sakranu fa-inna wasiyyatahu la tasihh”; “an yakuna mumayyizan… amma al-bulughu fa-laysa bi-shartin fa-tasihhu mina al-saghiri al-mumayyiz”; and that a testator whose tongue has failed cannot bequeath by gesture “illa idha kana mayu’san min bur’ih” (‘Abd al-Rahman al-Jaziri (d. 1360 AH)) · al-Mughni, Kitab al-Wasaya, mas’ala 4691 — al-Khiraqi: “wa-man kataba wasiyyatan wa-lam yushhid fiha, hukima biha, ma lam yu‘lam ruju‘uhu ‘anha”, with Ahmad’s ruling that a will found written at a dead man’s head in a hand known to be his is acted on; and the second report from Ahmad refusing handwriting, “wa-bi-hadha qala… al-Shafi‘iyyu… wa-ashabu al-ra’y” (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mughni, Kitab al-Wasaya, fusul 4692–4693 — on a sealed will the witnesses have not heard, listing MALIK among those who allow it; and “wa-yustahabbu an yaktuba al-musi wasiyyatahu wa-yushhida ‘alayha li-annahu ahfazu laha wa-ahwatu li-ma fiha” (it is recommended that the testator write his will and have it witnessed) (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mughni, Kitab al-Shahadat, mas’ala 8373 — al-Khiraqi: “wa-tajuzu shahadatu al-kuffari min ahli al-kitabi fi’l-wasiyyati fi’l-safari idha lam yakun ghayruhum”, against which “qala Abu Hanifata wa-Malikun wa’l-Shafi‘iyyu: la tuqbal” (Ibn Qudama al-Maqdisi (d. 620 AH)) · Surah al-Ma’idah 5:106 — “testimony [should be taken] among you when death approaches one of you at the time of bequest — two just men from among you, or two others from outside if you are travelling through the land” (Qur’an) — al-Jaziri’s Hanbali section and the Kuwaiti Mawsu’a’s Hanbali paragraphs on capacity; al-Khiraqi’s text and Ahmad’s two reports read in al-Mughni itself, a Hanbali work stating its own school’s position.