Is a bequest (Waqf) made by a sick person valid if restricted to some, but not all, of his heirs?
General Chapter
Al-Mughni
Book of Endowments (Awqaf) and Donations
Primary text
One transmission from Ahmad holds that such a restriction is invalid. If a sick person proceeds with such a restricted Waqf, it becomes dependent upon the ratification of all other heirs. This view is supported by what Ahmad stated to Ishaq bin Ibrahim regarding a man who made a Waqf of land for his sons' children, saying, 'If they do not inherit it, it is valid.' This implies prohibition of the Waqf being restricted to only some heirs during illness. This opinion is favored by Abu Hafs al-'Ukbar and Ibn 'Aqil, and it is the established doctrine of Al-Shafi'i. A second transmission from Ahmad permits the dedication of one-third of the estate as a Waqf for some heirs, similar to allocating it to non-relatives. The evidence cited for permissibility is the action of Umar ibn Al-Khattab (may Allah be pleased with him), who made his property, including Thaghm, a perpetual charity, stipulating that his daughter Hafsa administer it and benefit from its yield, after which the matter passes to the men of insight among his kin. This is cited as evidence that granting administration and usufruct to an heir is permissible, establishing that Waqf differs from a bequest because it is neither sold nor inherited.
Supporting text
The proponents of the prohibition argue that Umar’s case did not involve singling out certain heirs for the Waqf, which is the point of contention. Furthermore, granting guardianship to Hafsa was not a Waqf upon her, making it irrelevant to the specific dispute concerning a restricted Waqf. Simply benefiting from the yield does not justify singling out an heir, as demonstrated by the invalidity of bequeathing the benefit (usufruct) of a slave specifically to one's heirs. It is also reasoned that an endowment during illness that specifies certain heirs over others constitutes an unlawful preference, similar to a gift made under similar circumstances. It is plausible that Ahmad’s statement permitting dedication to heirs is restricted to cases where the Waqf encompasses all heirs, aligning with the narration of Umar and the established principles against preferential treatment.