Is the testimony of two non-related, upright witnesses regarding a bequest of manumission accepted alongside the testimony of two heir witnesses retracting that bequest and establishing a new one of equal or greater value?
General Chapter
Al-Mughni
Book of Claims and Evidences
Primary text
The testimony of two non-related, upright witnesses stating a bequest for the manumission of Salim, coupled with the testimony of two heir witnesses stating a retraction of the bequest for Salim and establishing a bequest for Ghanim of equal or greater value, is accepted. The bequest for Salim is nullified because the heirs do not acquire benefit for themselves nor avert harm from themselves through this testimony. The argument that heirs establish the master-servant relationship (Wala') for Ghanim is countered by the fact that they simultaneously extinguish the Wala' of Salim. Establishing the cause of inheritance does not preclude the acceptance of testimony, evidenced by the acceptance of testimony confirming Ghanim's manumission alone, where they gain his Wala', or testimony establishing the lineage of a brother, which establishes inheritance for them. Similarly, a woman's testimony regarding wealth for her brother is accepted even if she inherits from him. If the heir witnesses are considered wicked (fasiq), their testimony regarding the retraction is not accepted, and their admission regarding Ghanim is binding, resulting in Salim's manumission based on the upright witnesses, and Ghanim's manumission based on the heirs' admission of the bequest for him alone.
Supporting text
The view held by the Qadi and the Shafi'i school suggests that only two-thirds of the estate is used for manumission in this scenario. This is because Salim's manumission, established by the non-related witnesses, is treated as an unjust seizure (ghasb) after death, making Ghanim's bequest apply to half the estate, resulting in two-thirds of the estate being used for Ghanim's manumission (which equals one-third of the entire estate). The opposing view holds that since the heirs' admission confirms the state at death, and Salim's manumission occurred post-mortem through testimony, it is like a seizure after death, which does not prevent Ghanim's entire manumission from taking effect, similar to a case where a wicked heir testifies to Ghanim's manumission while the manumission of Salim is negated.