Is a written will accepted as proof if it lacks witnesses but the handwriting is known?
General Chapter
Al-Mughni
Book of Bequests
Primary text
A written will found at the head of the deceased is accepted and enforced if the handwriting is known and famous, even if it lacks witnesses. This position is reported from Ahmad via Ishaq ibn Ibrahim. The justification provided is based on the prophetic saying: 'There is no Muslim man who has something to bequeath, who spends two nights with his will written down next to him,' without mentioning witnesses. Furthermore, a will is generally treated with leniency; thus, accepting the handwriting alone is permissible, similar to the acceptance of hadith transmission.
Supporting text
There is a dissenting report from Ahmad stating that handwriting alone is insufficient for a will. This view requires witnesses to either hear the testator declare the will or have it read to them, leading to their affirmation. This stricter view is also held by Al-Hasan, Abu Qilabah, Al-Shafi'i, Abu Thawr, and the Companions of Al-Ra'y (the Hanafi school). The evidence cited is that judicial testimony cannot be based solely on viewing handwriting by consensus; therefore, it is more appropriate that a will should not be either. Even a judge’s decree or a witness’s testimony requires more formality than merely recognizing handwriting.