Is a bequest concerning the usufruct (fruit, yield, or service) of property valid?

General Chapter

Al-Mughni

Book of Bequests

Book 31 · Issue 1 · Bab 1

Open in Qurani

Primary text

The bequest of the fruit of a tree, an orchard, the yield of a house, or the service of a slave is valid. This ruling applies whether the bequest specifies a known period or covers all the fruit and benefit for the entire duration. This is the opinion of the majority (Al-Jumhur), including Malik, Al-Thawri, Al-Shafi'i, Ishaq, Abu Thawr, and the Ashab al-Ra'y (Hanafi school). The evidence supporting this is that the ownership of such usufruct is valid through a contract of exchange (mu'awada), thus the bequest of it is valid, similar to bequests of tangible assets. Furthermore, this bequest must originate from the testator's one-third disposable estate (thuluth). If it exceeds the one-third limit, it is executed only to the extent of one-third of the value.

Supporting text

Ibn Abi Layla ruled that a bequest concerning usufruct is invalid because it is considered non-existent (ma'dum).