What is the maximum extent a bequest to a non-heir is valid without the heirs' approval?

General Chapter

Al-Mughni

Book of Bequests

Book 31 · Issue 2 · Bab 1

Open in Qurani

Primary text

A bequest made to a non-heir becomes binding concerning one-third (al-thuluth) of the estate without requiring the approval of the heirs. Any portion exceeding one-third is suspended pending their ratification. If the heirs approve the excess, it is enforced; if they reject it, it becomes void. This is the position of all scholars. The evidence for this is the Prophet's command to Saad to only bequeath one-third, stating, 'The third is much.' Further evidence is the narration regarding Imran ibn Husayn's case concerning his slaves, where the Prophet divided them into three parts, indicating that disposition beyond one-third is not valid without heir approval because the right belongs to them.

Supporting text

The difference of opinion regarding whether the heirs' approval constitutes a mere implementation (tanfidh) or a fresh gift (a 'attyya mubtada'a) relates to whether the bequest or the gift made during severe illness is valid but conditional, or entirely void until ratified.