Is the testimony of two non-Muslim witnesses accepted regarding the will of a Muslim who dies while traveling, if no other witnesses are present?
General Chapter
Al-Mughni
Book of Testimonies
Primary text
The testimony of two non-Muslim witnesses concerning the will of a traveler who dies during his journey is accepted, provided no other witnesses exist. These witnesses must take an oath after the afternoon prayer, swearing that they have neither betrayed trust nor concealed anything, nor sold the bequeathed item for a small price, adhering to the principle found in Quran 5:106: "...nor shall we conceal the testimony of God, for then surely we would be among the sinful." This ruling is attributed to the great predecessors, including Shurayh, Al-Nakha'i, Al-Awza'i, and Yahya ibn Hamzah. Ibn Mas'ud and Abu Musa (may God be pleased with them) ruled accordingly.
Supporting text
Abu Hanifah, Malik, and Al-Shafi'i state that it is not accepted because those whose testimony is generally not accepted in matters other than wills (like the transgressor) are not accepted in wills. Some scholars interpreted Quran 5:106 as referring only to the retention (tahammul) of testimony, not its delivery (adaa'); others understood 'from others than you' to mean from outside their immediate clan. Yet another group held that the verse refers to the oath itself. The majority view is supported by the explicit text of Quran 5:106, as well as the ruling of the Prophet (peace be upon him) and the Companions in the case of the man from Bani Sahm, and the ruling of Al-Ash'ari concerning the man who died in Daqūqā’.