The wasiya (will): status and limits

Legality and status

The bequest is lawful by the Quran: "Prescribed for you, when death approaches one of you and he leaves wealth, is the bequest in favor of his parents and near relatives according to what is right: a duty upon the God-fearing" (sura al-Baqara 180-181), and "after a bequest he has made or a debt" (sura an-Nisa 11). Sa'd ibn Abi Waqqas reports that the Prophet (peace and blessings be upon him), visiting him during his illness, answered his question "all my wealth?" negatively, then "the half?" negatively, then "the third?":

"The third, and the third is a lot: to leave your heirs rich is better than to leave them holding out their hands to people."al-Bukhari 5039 ; Muslim 1628

The bequest is obligatory for unknown debts, deposits and unpaid rights (agreement of the scholars; Ibn Abd al-Barr: the bequest binds no one, unless he has a debt, a deposit or a trust). The prescribed way to settle these rights is the bequest: "It is not right for a Muslim who has something to bequeath to spend two nights without his written bequest under his hand" (al-Bukhari 2738 ; Muslim 1627), a hadith carried by the one who has a debt or a deposit. It is recommended in favor of a pious stranger, disliked for people of debauchery if the gift risks being diverted (Hanafis), and forbidden in case of harm: bequeathing a fictitious debt to harm the heirs, which the verse forbids: "without prejudice" (sura an-Nisa 12).

The ceiling of the third

Agreement of the scholars: whoever leaves heirs cannot bequeath more than a third; beyond that, the gift is suspended upon the ratification of the heirs (Ibn Abd al-Barr: agreement of the Muslim scholars; Ibn al-Mundhir: agreement on limiting to the third; Ibn Hazm: agreement, in health as in illness). "Allah has made charity for you, at the moment of your death, of a third of your wealth, as an increase for your deeds" (Ibn Majah 2709 ; Ahmad).

The whole third, less or nothing?

Rich heirs: the gift of the whole third is recommended among Shafi'is and a part of Hanbalis and Hanafis; the well-known position of the Hanafis and the Hanbali madhhab prefer to stay below the third. Poor heirs: Hanafis and Shafi'is recommend bequeathing less than the third, if the estate is large, by the hadith of Sa'd; an-Nawawi sums up: rich heirs, the third is recommended as an increase; poor heirs, one reduces it. Some scholars preferred the fifth, taking up the choice reported from Ala ibn Ziyad and the scholars of his time.

Practical note

Write a bequest, mention debts and deposits, not exceed the third without the heirs' consent, and aim at equity without harming anyone: four points that sum up the Sunna of the bequest.