Can an executor (Wasi) take a portion of the estate entrusted to him for distribution?
General Chapter
Al-Mughni
Book of Bequests
Primary text
The executor entrusted with distributing an estate to the poor and charitable causes is not permitted to take any portion for himself, as his command is solely to execute the distribution. This view is affirmed by Ahmad, Malik, and Al-Shafi'i. The reasoning established is that this is a form of granting ownership through permission, which prohibits the executor from accepting the property for himself, analogous to a situation where one is authorized to sell an item but cannot sell it to himself.
Supporting text
Abu Thawr and the companions of Al-Ra'y permit the executor to take a portion for himself and his children if the testator stated: 'I made it permissible for you to use one-third (ms3179) as you wish, or as you see fit.' Furthermore, it is suggested that this permission might be valid under our school of thought because it is explicitly covered by the testator's wording. Another possibility is that the circumstances should be examined; if contextual evidence indicates the testator intended for the executor to take (e.g., the executor is among the eligible recipients, or it is his custom to take from such funds), then he may take; otherwise, he may not. A third possibility suggests the executor may give to his children and other relatives if they are eligible recipients, but not to himself, as he is ordered to distribute, and distributing to others fulfills the mandate, similar to giving to a non-related person.