How is the validity and disposition of an endowment made during the illness of death (*marad al-mawt*) determined?
General Chapter
Al-Mughni
Book of Endowments (Awqaf) and Donations
Primary text
An endowment made during the illness of death is treated as a bequest (*wasiyyah*), meaning it is effective only up to one-third (al-thuluth) of the estate because it is a voluntary gift (*tabarru'*) made under such condition. If it is within the one-third limit, it is valid and binding without the consent of the heirs. If it exceeds one-third, the excess portion requires the authorization of the heirs to be binding, as the rights of the heirs attach to the property upon the onset of the illness, preventing a voluntary gift exceeding one-third, similar to manumission or other gifts.
Supporting text
If the donor states, 'This is an endowment after my death,' the apparent view of Al-Kharqi and Imam Ahmad is that it is valid and accounted for from the one-third like other bequests. However, Al-Qadi holds that this is invalid because it constitutes suspending the endowment upon a condition, which is impermissible for endowments, citing the invalidity of suspending it upon a condition during one's life. Al-Kharqi's statement is interpreted by some as conditional upon saying, 'Endow after my death,' making it a bequest of an endowment rather than an immediate endowment.