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Posted By Topic: For those asking about INHERITANCE

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Moosaa
04-07-2003 @ 12:00 AM    Notify Admin about this post
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As-Salaamu 'alaykum -

There is a need to make a distinction between a wasiyyah and irth. So:

wasiyyah: what someone bequeaths in writing to a non-inheritor, up to one-third of one's wealth

irth: inheritance

The irth (inheritance) is Allaah's set distribution of a person's estate after he dies and his debts are paid and his wasiyyah's are distributed. It is what is mentioned in the hadeeth (LAA YARITHU AL-MUSLIM AL-KAAFIR, WA LAA AL-KAAFIR AL-MUSLIM) "The Muslim does not take the IRTH of the kaafir, and the kaafir does not take the irth of the Muslim."

The wasiyyah is something seperate, to be distributed before the irth, along with payments of debts. Refer to 4:11 of the Qur'aan for the mention of the differnce between these two things.

I do not know any evidence to prohibit a Muslim from taking the wasiyyah of a kaafir relative.  I hope to have this question posed soon to one of the shuyookh and it will be put up soon in shaa' Allaah.

There are a lot of details to the issue, so people should withhold from speaking until they hear something from the people of knowledge on the issue.

You may have read the hadeeth about the irth and then you prevent someone from taking a wasiyyah that was halaal for him because you spoke based on one hadeeth, so please be careful.

I even heard a miskeen brother say, after hearing that there is a difference between the rulings of irth and wasiyyah, "Naw man - you just trying to make inheriting from a kaafir halaal!"  A'oothu billaah! If a Allaah made a distinction between the two in HIS BOOK, then we affirm the distinction, and do not apply narrations regarding the irth to the wasiyyah, with NO PROOF to do so.

And Allaah knows best. Be patient and look for something soon.

And if one of the students has already dealt with this issue, then may Allaah reward him for posting it here so the brothers and sisters can benefit!

Moosaa Richardson

********************
سبحانك اللهم وبحمدك
أشهد أن لا إله إلا أنت
أستغفرك وأتوب إليك

Moosaa
04-11-2003 @ 12:00 AM    Notify Admin about this post
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Clarifying the distinction between the wasiyyah and the irth

From the Book of Allaah:

من بعد وصية يوصى بها أو دين
?After (the distribution of) a wasiyyah that was intended, or a debt? [1]


In this verse, Allaah lays down the legislation for how irth is to be distributed.  Then, He legislates that the irth is to be distributed after any wasiyyahs or debts.  In the next aayah as well, Allaah repeats this distinction three more times.

From the Sunnah of the Prophet (sallallaahu ?alayhe wa sallam):

إن الله قد أعطى لكل ذي حق حقه فلا وصية لوارث الولد للفراش وللعاهر الحجر...
?Verily Allaah has given every person his true rights, so there can be no wasiyyah for a waarith (one who receives irth), and the child is for the (owner of the) bed, and the fornicator gets the stone (ie. nothing)?? [2]


Here the Messenger (sallallaahu ?alayhe wa sallam) forbids the one who receives irth from also receiving a wasiyyah.  So obviously they are two separate things with different rulings.


What exactly is a wasiyyah then?

Muhammad ibn Ahmad Al-Hafeed (d.595), the author of Bidaayatul-Mujtahid, said:

الوصية بالجملة هي هبة الرجل ماله لشخص آخر أو لأشخاص بعد موته أو عتق غلامه، سواء صرح بلفظ الوصية أو لم يصرح به
?The wasiyyah, in a nutshell, is a man giving a gift from his wealth to another or a group of people after his death, or that he frees his slave, whether he mentions the word ?wasiyyah? specifically or not.? [3]


So the wasiyyah is that which is given to someone according to the wishes of the deceased.  It can be expressed verbally or in writing, and then it is witnessed.  In the West, it is similar to when a man writes someone in his will to receive his house, car, or a sum of money.

We have been prohibited from taking the irth of the kuffaar, according to the hadeeth:

لا يرث المسلم الكافر ولا الكافر المسلم
?The Muslim may not take the irth of the kaafir, nor may the kaafir take the irth of the Muslim.? [4]


Does this prohibition also include the wasiyyah as well?  Let us look to some of the statements of the scholars.


The statements of the scholars concerning a Muslim?s wasiyyah to a kaafir

With regards to a Muslim giving a wasiyyah to a kaafir, then the scholars have unanimously agreed that it is permissible.  Ibn ?Abdil-Barr said:

لا خلاف علمته بين العلماء في جواز وصية المسلم لقرابته الكفار، لأنهم لا يرثونه.  وقد أوصت صفية بنت حُيَيٍّ لأخ لها يهودي.
?There is no differing among the scholars, that I know of, over the permissibility of a Muslim giving a wasiyyah to his kaafir relative, since they do not inherit from him.  And Safiyyah bint Huyay gave a wasiyyah to her Jewish brother.? [5]


Ibn Qudaamah Al-Maqdisee (d.620) said:

روي إجازة وصية المسلم للذمي عن شُريح والشعبي والثوري والشافعي وإسحاق وأصحاب الرأي.  ولا نعلم عن غيرهم خلافهم.
?The permissibility of a Muslim giving a wasiyyah to a thimmee has been reported from Shurayh, Ash-Sha?bee, Ath-Thawree, Ash-Shaafi?ee, Ishaaq, and the Hanafees.  I do not know anyone who differed with them.? [6]


Al-Maardeenee (d.912) said:

فتصح لفقراء زاوية معينة _ أو رباط _ ولذمي وصبي ومجنون بالإجماع
?It (the wasiyyah) is allowed to be given to the poor people of a specific area, or a band of them, and to a thimmee, a young child, or an insane person by agreement of the scholars.? [7]



The statements of the scholars concerning the kaafir?s wasiyyah to a Muslim

The scholars have also agreed that a Muslim may accept the wasiyyah of a kaafir.  Ibn Al-Munthir (d.318) said, relating a consensus:

أجمع كل من نحفظ عنه من أهل العلم على أن وصية الذمي للمسلم بما يجوز أن يملكه جائزة.
?All of the people of knowledge that we take from have agreed that the wasiyyah of a thimmee (a Jew or a Christian living under Islaamic rule) is permissible, so long as the thing given itself is permissible to possess.? [8]


Muhammad ibn Ahmad Al-Hafeed (d.595), the author of Bidaayatul-Mujtahid, said:

وصية الكافر تصح عندهم _ أي الأئمة _ إذا لم يوص بمحرم
?And the wasiyyah of a kaafir is permissible to take according to them (the imaams), so long as the wasiyyah is not something haraam in itself.? [9]


Ibn Qudaamah Al-Maqdasee said:

وإذا صحت وصية المسلم للذمي، فوصية الذمي للمسلم والذمي للذمي أولى
?So when it is permissible for a Muslim to give a wasiyyah to a thimmee, then a thimmee?s wasiyyah to a Muslim, or to another thimmee, has even more right.? [10]


Muhammad ibn Saalih Al-?Uthaymeen (d.1421) said:

إذا قال قائل كيف يكون الوالدان غير وارثين؟  فالجواب: أن ذلك ممكن، مثل أن يكون الأب أو الأم مخالفاً في الدين، فإنه لا يرث فتوصي له
?If someone asks, ?How can one?s parents not be considered waariths??  The answer: That is possible, like when the mother or father has a different religion, then they do not take any irth, rather they can be given a wasiyyah.? [11]


In Conclusion

If one of Fulaan the Muslim?s kaafir relatives dies, and he/she left for Fulaan a sum of money or some kind of property or wealth, having specified it for Fulaan, either in writing or by speech or gesture, and, as a result, that wealth is then offered to Fulaan, then it is permissible for Fulaan to accept it, and it is from Allaah?s halaal provisions for him.  And Allaah is Al-Muwaf-fiq.


The next question that we need to have answered in this thread is:

What if the kaafir relative specifies Fulaan to receive more than one-third of his/her wealth?  The Prophet (sallallaahu ?alayhe wa sallam) forbade us from giving someone more than one-third of our wealth as a wasiyyah.  The scholars have two positions with regards to the one who left a wasiyyah of more than one-third:

1) Only up to one-third may be given, and the rest is to be distributed as irth.

2) The entire wasiyyah can be given only with the consent of all the inheritors.  If they do not agree, then only up to one-third is given and the rest is distributed to the inheritors.

So then does this apply to the kaafirs?  Do we restrict them to one-third as well?  If Fulaan?s kaafir relative leaves everything as a wasiyyah for him, can he take it?  May Allaah assist us in finding answers from the people of knowledge for these important questions!



FOOTNOTES

[1] Soorah An-Nisaa? 4:11

[2] Saheeh Sunan At-Tirmithee (2120)

[3] Bidaayatul-Mujtahid (4/180)

[4] Al-Bukhaaree and Muslim

[5] At-Tamheed (13/239)

[6] Al-Mughnee (8/512)

[7] Irshaad Al-Faaridh (p.275)

[8] Al-Ijmaa? (p.275)

[9] Bidaayatul-Mujtahid (4/173)

[10] Al-Mughnee (8/512)

[11] Tafseer Soorah Al-Baqarah (2/309)


Moosaa Richardson

********************
سبحانك اللهم وبحمدك
أشهد أن لا إله إلا أنت
أستغفرك وأتوب إليك

This message was edited by Moosaa on 9-1-03 @ 12:17 PM

Moosaa
09-01-2003 @ 5:15 AM    Notify Admin about this post
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raised

Moosaa
02-03-2007 @ 12:20 PM    Notify Admin about this post
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raised again 3 years later

zaahir.abd
02-04-2007 @ 2:40 AM    Notify Admin about this post
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As salaamu 'alaikum


BarakAllaahu feek, for the information given. You posted towards the end :

The scholars have also agreed that a Muslim may accept the wasiyyah of a kaafir.  Ibn Al-Munthir (d.318) said, relating a consensus:


أجمع كل من نحفظ عنه من أهل العلم على أن وصية الذمي للمسلم بما يجوز أن يملكه جائزة.
?All of the people of knowledge that we take from have agreed that the wasiyyah of a thimmee (a Jew or a Christian living under Islaamic rule) is permissible, so long as the thing given itself is permissible to possess.? [8]


Muhammad ibn Ahmad Al-Hafeed (d.595), the author of Bidaayatul-Mujtahid, said:


وصية الكافر تصح عندهم _ أي الأئمة _ إذا لم يوص بمحرم
?And the wasiyyah of a kaafir is permissible to take according to them (the imaams), so long as the wasiyyah is not something haraam in itself.? [9]

So my questions are:
"How about ones kuffaar parents wanting to leave one money in a Life Insurance Policy(may carry Interest)? ------->
Is there an explanation on what is haraam or halaal from their wassiyah according to the statement- "so long as the thing given itself is permissible to possess.?,mentioned by Ibn Al-Munthir of the consensus of the Scholars?  

Being that they are kuffaar should we look to where this money is coming from or is it getting too deep into the matter?
And can one give them an alternative when they offer? I would like to know as my mom made mention of wanting to leave something for me and my children.
If you are going to ask the shuyookh, can you ask this for me?

BarakAllaahu feek again for the thread

السلام عليكم ورحمةالله
ابوعبدالرحمن زاهر
سبحانك اللهم وبحمدك
أشهد أن لا إله إلا أنت
أستغفرك وأتوب إليك

AbuAbdir-Razzaq
08-25-2009 @ 6:12 PM    Notify Admin about this post
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Raised

Masha'Allah tabarakAllah a very beneficial post jazakamullahu khairan wa Hayakamullah.

Abdullah b.Umar May Allah be pleased with them both said:
'Every bidah(religious innovation) is misguidance, even if people think it is good.'
Al-Lalikaii in Sharh Us‎l I‎tiq‎d Ahl Al-Sunnah wa Al-Jama'ah Vol 1. P134, no.111






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