The Qur’anic injections regarding distributing of inheritance repeatedly stress the point that the stipulated shares can only be disbursed after fulfilling any testamentary wills left by the deceased. This invites two important questions:

First, has the Shari’ah put a limit the on the part of the wealth to be bequeathed or one can bequeath as much of the assets as he wills?

Second, can one also bequeath wealth to the legal heirs?

My response to the first question is that the wording and expressions in the relevant Qur’anic edicts do leave a room for this conclusion. They do not admit putting a limit on this right to the person leaving a will. The Almighty has stated it in general terms that the wealth will only be distributed after the fulfilment of the testamentary wills. No linguistic convention allows us to make a room for the limit on this right. What then is the meaning of the hadith ascribed to the Prophet (sws) which puts a limit on this right? I believe that the Prophetic command is of a different nature. It deals with another aspect of the issue. A Companion (rta) expressed his desire to leave a will that all of his wealth is given in the way of Allah after his death. The Prophet (sws) said that what he intended to give away was in fact more extraordinarily large. Once should not leave his legal heirs in need. The Companion (rta) then asked if it was appropriate for him to leave two third or half of his wealth to be given in the way of God. The Prophet (sws) again said that it was too much and that it would leave his legal heirs in need. Then the Companion (rta) asked if he could give away one third of his wealth? The Prophet (sws) responded that it was enough.[1] Every reasonable man can understand that it was a specific case facing a particular man. It cannot be held to be the basis of a legal specification and condition.

My explanation of the second question is that God himself has ordained that the legal heirs get a defined share. No believer can think of leaving a will in favour of the legal heirs whose portion has been stipulated by God himself considering their mutual relation and kinship. This shows that they cannot be given more than their share on this basis. However, if one decides to bequeath an extra part of the wealth in favour of a legal heir considering their specific needs and circumstances of his or her services to the deceased then he can validly do that. For example if one of the children is a student and the rest have already got education and established their businesses with the help and support of their parents the father can decide to leave an extra share for the former. In some cases one receives exceptional care and services from a son or daughter who deserve a reward. Similarly a husband may think that his wife will not have enough in his absence to look after her he can leave a will for her. One can leave such wills for friends and acquaintance or for charity purpose. On the same ground one can leave a will for family members and relatives whose share has been defined by the Shri’ah. There is nothing in the relevant Shari’ah directives barring us from doing this.

(Translated by Tariq Mahmood Hashmi from Ghamidi’s Maqamaat)

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[1] Bukhari, No: 2742 and Muslim, No: 1628.