Question:
Assalamualaikum Datuk, I want to ask regarding my father’s will where he left his motorcycle to his non-Muslim neighbour. Is this permissible?
Answer:
Alhamdulillah, praise and thanks to Allah for the countless blessings He has blessed us all with. Blessings and salutations to the Prophet Muhammad PBUH, his wives, his family, companions and all those that follow his teachings to the day of judgement.
Will
Property planning and management is encouraged in Islam. Thus, will is one of the initiatives in the implementation of financial system in Islam.
The condition for a will is stated by Syeikh Muhammad al-Zuhaili in his book:
“Leaving a will is sunnah and it is a third or less of the whole property to be given to other who are not his heirs. And it is prioritized to be given to the closest to him who are not his heirs.” (See al-Mu’tamad fi al-Fiqh al-Syafi’e, 4/539)
A hadith from Saad bin Abi Waqas, he said:
عن سعاد بن أبي وقاص رضي الله عنه, قُلتُ: يا رَسولَ اللَّهِ، أُوصِي بمالِي كُلِّهِ؟ قالَ: لا، قُلتُ: فالشَّطْرُ، قالَ: لا، قُلتُ: الثُّلُثُ، قالَ: فالثُّلُثُ، والثُّلُثُ كَثِيرٌ، إنَّكَ أنْ تَدَعَ ورَثَتَكَ أغْنِياءَ خَيْرٌ مِن أنْ تَدَعَهُمْ عالَةً يَتَكَفَّفُونَ النَّاسَ في أيْدِيهِمْ
"O Allah's Messenger (ﷺ)! May I will all my property (in charity)?" He said, "No." I said, "Then may I will half of it?" He said, "No". I said, "One third?" He said: "Yes, one third, yet even one third is too much. It is better for you to leave your inheritors wealthy than to leave them poor begging others,"
Sahih al-Bukhari (2742)
Conditions of the Recipients of a Will
In determining the recipients of a will, Syeikh Muhammad al-Zuhaili divides the recipients into the specified and unspecified recipients. And each has their own set conditions:
- Specified recipient is a recipient who is specifically named, such as individuals or organizations such as a mosque. This is under the condition that they are eligible to accept it and it is invalid to leave it to a deceased. Furthermore, the recipient must not be from among his heirs.
- Unspecified recipient is a general statement in the will such as leaving his property to the poor, needy, mosques, schools or people fighting for Allah SWT’s sake, family members who do not receive the inheritance, patients, zimmah people and matters regarding hajj and umrah. It is impermissible for the will to include matters for the purpose of sins such as enlivening churches and others.
As for the issue of leaving one’s property to a non-Muslim through a will, it is permissible, the same as donating or giving gifts to non-Muslims. Syeikh Muhammad al-Zuhaili said in his book:
“It is permissible and valid to leave one’s property to the zimmi, al-Mu’ahad, harbi or apostate the same as donating or giving gifts to them.”
It is on the condition that it is not for the purpose of sin such as enlivening churches, writing Bible and Torah and reciting them, writing deviant philosophies and deviant teachings, regardless whether it is to Muslims or non-Muslims. (See al-Mu’tamad fi al-Fiqh al-Syafi’e, 4/543-547)
The same is stated in al-Mausu’ah al-Fiqhiyyah, according to Syafieyyah scholars, it is valid to leave one’s property to zimmi disbelievers if it is specified in his will, for example “I leave it to so and so,” (See al-Mausu’ah al-Fiqhiyyah al-Kuwaitiyyah, 2/312)
Conclusion
Coming back to the above question, it is permissible to leave one’s property in his will to non-Muslim that he knows and has specified with the maximum amount of a third from the inheritance on the condition that it is not for sinful purposes. This is stated in al-Mausu’ah al-Fiqhiyyah:
“Hanafiah, Hanabilah and most Syafieyyah scholars state that it is valid for a Muslim to leave his property to a zimmi disbeliever or a zimmi disbeliever to leave his property to a Muslim. The reason is, a person’s disbelief does not abrogate his right of ownership just like the validity of trade and giving gifts to disbelievers.” (See al-Mausu’ah al-Fiqhiyyah al-kuwaitiyyah, 2/312)
This is as stated by Allah SWT in the Quran:
لَّا يَنْهَاكُمُ اللَّـهُ عَنِ الَّذِينَ لَمْ يُقَاتِلُوكُمْ فِي الدِّينِ وَلَمْ يُخْرِجُوكُم مِّن دِيَارِكُمْ أَن تَبَرُّوهُمْ وَتُقْسِطُوا إِلَيْهِمْ ۚ إِنَّ اللَّـهَ يُحِبُّ الْمُقْسِطِينَ
“Allah does not forbid you from those who do not fight you because of religion and do not expel you from your homes - from being righteous toward them and acting justly toward them. Indeed, Allah loves those who act justly.”
Surah al-Mumtahanah (8)
However, it is sunnah and prioritized to leave one’s property to those in need who are among his closest relations that are not among his heirs. The reason is, donation of gifts is prioritized for one’s closest relations. A hadith from Abu Hurairah RA state, the Prophet PBUH said:
إِذَا مَاتَ الإِنْسَانُ انْقَطَعَ عَنْهُ عَمَلُهُ إِلاَّ مِنْ ثَلاَثَةٍ إِلاَّ مِنْ صَدَقَةٍ جَارِيَةٍ أَوْ عِلْمٍ يُنْتَفَعُ بِهِ أَوْ وَلَدٍ صَالِحٍ يَدْعُو لَه
“When a man dies, his acts come to an end, but three, recurring charity, or knowledge (by which people) benefit, or a pious son, who prays for him (for the deceased).”
Sahih Muslim (1631)
May Allah SWT give us goodness and correct understanding in His commandments and bless us with strength to practise it. Amin.