Is the authority (Wilayah) for marriage established through a bequest (Wasiyyah)?
General Chapter
Al-Mughni
Book of Marriage
Primary text
There are differing reports attributed to Ahmad regarding whether the authority for marriage is established by a bequest. One narration states that it is established by bequest. This is the choice of Al-Kharaqi, based on the statement, 'Or if he bequeathed a supervisor for him concerning marriage.' This is also the view of Al-Hasan, Hammad ibn Abi Sulayman, and Malik. The evidence supporting this view is that the father (who holds the right) may appoint a representative during his lifetime, thus his representative may stand in his place after his death, allowing for a bequest, similar to the authority over property.
Supporting text
The opposing view, held by Sufyan al-Thawri, Al-Sha'bi, Al-Nakha'i, Al-Harith Al-'Uکلی, Abu Hanifa, Al-Shafi'i, and Ibn al-Mundhir, states that the authority is not established by bequest. Their reasoning is that this is an authority that legally transfers to another person, so a bequest for it is invalid, similar to custody (Hadanah). Furthermore, there is no harm to the executor (Wasi) in neglecting it or placing it with an unsuitable person, thus the authority should not be established for him, just as it is not established for a non-relative (Ajnabi). They also argue that since it is an authority related to marriage, a bequest for it is invalid, similar to the authority of the judge (Hakim).