Clarifying the Difference Between a Wasiyyah (Bequethal) and Irth (Inheritance)

In the Name of Allaah, the Possessor of Infinite Mercy, the Justly Merciful…

Allaah says: [1] 

( After (the distribution of) a wasiyyah (bequethal) that was intended, or a debt (owed) )
In this verse, Allaah lays down the legislation for how irth (inheritance) is to be distributed.  Then, He legislates that the irth is to be distributed after any wasiyyahs (bequethals) or debts.  In the next verse as well, Allaah repeats this same distinction three more times.

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

“Verily Allaah has given every person his true rights, so there can be no wasiyyah (bequethal) 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?

Ibn Rushd Al-Hafeed (d.595), the author of Bidaayatul-Mujtahid, said, “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 (inheritance) of the non-Muslims, according to the authentic hadeeth:

“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 non-Muslim

With regards to a Muslim giving a wasiyyah to a non-Muslim, the scholars have unanimously agreed that it is permissible.  

Ibn ‘Abdil-Barr (d.464) said, “There is no differing among the scholars that I know of over the permissibility of a Muslim giving a wasiyyah to his non-Muslim 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, “The permissibility of a Muslim giving a wasiyyah to a thimmee (non-Muslim living under Muslim rule) has been reported from Shurayh, Ash-Sha’bee, Ath-Thawree, Ash-Shaafi’ee, Is-haaq, and the Hanafees.  I do not know anyone who differed with them.” [6]

Al-Maardeenee (d.912) said, “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 non-Muslim.  

Ibn Al-Munthir (d.318) said, relating a consensus, “All of the people of knowledge that we take from have agreed that the wasiyyah of a thimmee (a non-Muslim living under Muslim rule) is permissible, so long as the thing given itself is permissible to possess.” [8]

Ibn Rushd Al-Hafeed (d.595), said, “And the wasiyyah of a non-Muslim 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 (d.620) said, “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 (to legitimacy).” [10]

Muhammad ibn Saalih Al-‘Uthaymeen (d.1421) said, “If someone asks, ‘How can one’s parents not be considered waariths (inheritors)?’  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(instead).” [11]

Conclusion

Fulaan (like saying So-and-So in Arabic) is a Muslim.  If one of Fulaan’s non-Muslim relatives dies, leaving 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-Muwaffiq, the One who grants success.

Written by: Moosaa Richardson

ST Archives: 04-11-2003

FOOTNOTES

[1] The meaning of 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)

7 thoughts on “Clarifying the Difference Between a Wasiyyah (Bequethal) and Irth (Inheritance)

  1. Bismillah

    Assalaamu Alaikum warahmatuhlahi wabarakatuh.

    My grandmother became Muslim two weeks before she died, Alhamdulillah.

    She made a will the day before she died, saying she was disinheriting all her children except my Christian mother and left everything to my mom.

    My mom died 8 years later with no will.

    I am my mothers only child and I was designated to be guardian of house and now have house in my name.

    This precious knowledge surpasses me and I am trying to understand. It seems to me the house is harram for me after reading the above description.

    Please advise me what to do with this harram house it seems I have acquired, am I to give it to my kufar relatives my Muslum grandma disinherited or should I donate it to Salafee community to sell and use proceeds for building Masjid?

  2. Bismillah

    Assalaamu Alaikum warahmatuhlahi wabarakatuh.

    Naam. Jazzaka Allahu khairun.

    What more information is needed so I can ask this question correctly to Shaykh Ramzaan al Hajiri inshaAllaah?

  3. Oops I meant to write Shaykh Muhammad Ramzaan Al Hajiri insha’Allaah.

    He is very busy though Alhamdulillah we are discussing inheritance now in our weekly Massail al Jahiliyyah and Umdatul Akham classes. I have asked him twice already in the past two years trying to figure out what to do.

    I think my mom intended for the house to go to me, because she was very angry when I told her I cannot inherit from her but that she could bequeath it to me. And then there was a misunderstanding between us on the difference of the two, which is why I think she had no will.

    Allah knows best.

  4. as salaamu alaikum i have a situation where i wasn’t born muslim and my parents were never married when i was conceived so i know now after becoming muslim that the man that i know as my father islamicly now doesn’t have ny rights over me…his my mother had an insurance policy where i was the beneficiary after her son, she died when i was 10 i’m 30 now and her son just died two weeks ago and i was in charge of the funeral affairs but his sister took charge of it and the policy is suppose to come to me and i’m just trying to get some clarity on if i’m suppose to take it or not please in sha allah if you can i don’t want o do anything haram and that’s displeasing to my lord

  5. Asalaamu alaykum wa rahmatullahi wa barakatuhu

    I am a new Muslim, may you please help me figure this out? in sha Allah khair

    My non Muslim grandmother passed away and my uncle (also non Muslim), her son, stared to empty her closet and give me most of her clothing. What do you recommend I do with these belongings? Is it permissible for me to keep them? If not, is it permissible to donate them to other Muslims?

    • Wa ‘alayk as-salaamu wa rahmatullaahi wa barakaatuh. May Allaah bless you and grant you stability and prosperity. In Islam, the son is an heir. Since he took control of his mother’s property, and then gave some to you, you can keep things simple by considering those items to be gifts from your uncle, not inheritance from your grandmother, and Allaah knows best.

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