Bequeathing an unstipulated amount for a non-heir
Question
A deceased person was divorced from his first wife. However, he made a Wasiyyah that a ‘little’ amount should be given to his former wife from his estate. The amount is not stipulated, so how much should be given to her?
Answer
The Fuqaha have stated that if a person bequeaths a portion of his wealth then his heirs will be told to fulfil the Wasiyyat by giving any amount that they (the heirs) wish to give. In other words they (the heirs) will decide and stipulate the amount that the former wife is to receive. The reasoning provided by the jurists is that an ambiguous amount (that is not stipulated by the testator) includes a small amount as well as a large amount. However, such ambiguity does not prevent one from fulfilling the Wasiyyah. In such a scenario, the inheritors become the substitutes of the testator in determining the amount; hence they will be required to provide the amount.
References (Arabic / Urdu sources)
References:-
(وإن أوصى بجزء من ماله قيل للورثة: أعطوه ما شئتم)، لأنه مجهول يتناول القليل والكثير، غير أن الجهالة لا تمنع صحة الوصية، والورثة قائمون مقام الموصي، فإليهم البيان، هداية. (اللباب ص228)
- Answered by
- Mufti Mohammed Desai
Where scholars differ, it’s safer to take the more cautious view.
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Source: Darul Ifta Ibn Masood — https://fataawa.co.za/13807-2/
Fatawa SA: https://fatawa.co.za/fatwa/ibnmasood-13807
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“If a bequest is made in favour of non-heirs, then the bequest will be valid up to one-third of the estate, if they, i.e., the beneficiaries, are alive at the time of demise.”
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