Is the will of a normally speaking person whose tongue is suddenly paralyzed valid if expressed through gesture?
General Chapter
Al-Mughni
Book of Bequests
Primary text
If a normally speaking person suffers temporary paralysis of the tongue, and they express their will via gesture which is understood, the will is not valid. This position is stated by Al-Qadi, Ibn Aqil, Al-Thawri, and Al-Awza'i, and is also the view of Abu Hanifa.
Supporting text
Al-Shafi'i and Ibn al-Mundhir hold that the will is valid because the person is incapable of speech, making them analogous to the mute person. Ibn al-Mundhir cited the tradition where the Prophet, peace be upon him, prayed while sitting and gestured to the companions to sit, which they did, as narrated by Al-Bukhari. Ibn Aqil mentioned an exception if death follows the paralysis immediately. The primary rebuttal against this view is that the speech-paralyzed person is not considered entirely without hope of recovering speech, unlike the permanently mute person. Furthermore, the cited hadith is inapplicable because the Prophet, peace be upon him, was capable of speech, and there is no dispute that a gesture from someone capable of speech is invalid for a will or confession.