What is the valid extent of a bequest when the deceased leaves no direct heirs (asabah) or fixed share heirs (dhawu furūḍ)?
General Chapter
Al-Mughni
Book of Bequests
Primary text
There are differing narrations from Ahmad concerning one who leaves no 'asabah or fixed share heir. One narration permits the bequest of his entire wealth. This view is established from Ibn Mas'ud and is held by 'Ubaydah Al-Sulamani, Masruq, Ishaq, and the people of Iraq. The rationale for this is that the restriction on exceeding one-third of the estate was imposed to protect the rights of the heirs, as evidenced by the Prophet's saying: 'Leaving your heirs wealthy is better than leaving them destitute, begging from people.' Since no heir's right is attached to the estate in this case, the situation resembles that of a healthy person, or that the estate should be limited to one-third only because no heir or creditor's right is attached.
Supporting text
The other narration limits the bequest to one-third. This view is held by Malik, Al-Awza'i, Ibn Shubrumah, Al-Shafi'i, and Al-'Anbari, because the deceased has someone who can inherit on his behalf (even if not a fixed heir), thus his bequest cannot be executed for more than one-third, as if he had an heir.