When does the effect of a bequest (wasiyyah) become legally effective?
General Chapter
Al-Mughni
Book of Bequests
Primary text
The legal effectiveness of a bequest is established upon the death of the testator. There is no known disagreement among scholars on this principle. If a person bequeaths to three separate brothers and has no children, and dies before conceiving a child, the bequest to any brother other than the full brother (from the father) is only valid upon the ratification (ijazah) of the heirs. If a son is subsequently born, the bequest to all brothers is valid without ratification, provided the bequest does not exceed one-third of the estate.
Supporting text
If the testator had a daughter, the bequest to his full brother and his maternal half-brother is permissible. In this case, the two brothers share the bequeathed third equally, half each. The bequest to the full brother is invalid because he is an heir (warith). This opinion is held by Al-Shafi'i, Abu Thawr, Ibn al-Mundhir, the Ahd al-Ra'y (People of Opinion), and others, with no known dissent.