Is a bequest (wasiyya) valid to an enemy combatant residing in their territory (dar al-harb)?
General Chapter
Al-Mughni
Book of Bequests
Primary text
The bequest to an enemy combatant residing in the territory of war is valid. This is the position affirmed by Ahmad, the opinion of Malik, and the majority of the Shafi'i school. The evidence for this is that a gift (hiba) to such a person is valid, and a bequest is analogous to a gift. A narration states that the Prophet, peace be upon him, gave Umar a silk garment, and when Umar asked about giving it because of what the Prophet had said regarding the garment of 'Utard, the Prophet replied he did not give it for Umar to wear. Umar then clothed his polytheist brother in Mecca with it, indicating permissible kindness and donation to those in the territory of war. Furthermore, a narration concerning Asma bint Abi Bakr shows permission to maintain ties (صلة) with a non-believing relative, which is considered a form of kindness (birr). As for the verse (Quran 5:8-9), the ruling applies to those who do not fight Muslims, but the prohibition of befriending (tawalli) does not equate to prohibiting kindness or bequest to one who fights.
Supporting text
Some scholars hold that the bequest is invalid. This is the view of Abu Hanifa, who argues based on the implication of the verse (Quran 60:9), which prohibits kindness to those who fight Muslims, suggesting that kindness to them is impermissible. Additionally, since a gift to them is valid, and bequest is similar in nature, the validity of the gift serves as a proof for the validity of the bequest, which is deemed a stronger principle against the inferred prohibition.