Does the right to accept or refuse a bequest pass to the legatee's heirs if the legatee dies after the testator but before acceptance or refusal?
General Chapter
Al-Mughni
Book of Bequests
Primary text
There is a difference of opinion among our colleagues (Ashabuna). Al-Khiraqi holds that the heir stands in place of the legatee for acceptance or refusal, as it is a right established for the deceased that transfers to the heir, based on the tradition: "Whoever leaves behind a right, it belongs to his heirs." This is analogous to the option to refuse due to defect (khiyar al-'ayb).
Supporting text
Abu Abdullah bin Hamid holds that the bequest is nullified because it is a contract requiring acceptance; thus, the death of the acceptor voids the contract, similar to a gift (Hiba). Al-Qadi considers this consistent with the dominant view (Qiyas al-Madhhab) because the option (khiyar) cannot be compensated for, so it is voided by death, like the option of the session or condition, or the option to take by pre-emption (Shufa'a). The People of Opinion (Ashab al-Ra'y) hold that the bequest is binding upon the heir and enters their ownership by ruling without acceptance, as the obligation is fixed by the testator, and the option dies with the legatee.