180. " it is prescribed for you, when death approaches
(any) one of you,
and if he leaves behind wealth for parents and near relatives that he makes
a bequest in a fair manner ö
(this is) a duty (incumbent) on the pious ones."
181. " whoever then changes it (the bequest) after he has heard it,
the sin thereof shall be on those who change it.
surely allah is all-hearing, all-knowing."
182. " but if any one fears injustice or sin on the part of a testator,
and establishes agreement among them (the parties concerned),
then there is no sin upon him;
surely allah is forgiving, merciful."
commentary:
bequest in a fair manner
the speech in former verses was about problems such as life,
murder, murdered, and retaliation, while in these verses a part of the
ordinances of bequest in relation with the financial affairs is referred to,
where it says:
" it is prescribed for you, when death approaches
(any) one of you,
and if he leaves behind wealth for parents and near relatives that he makes
a bequest in a fair manner ö ..."
then, at the end of the verse, it adds:
"... (this is) a duty (incumbent) on the pious ones."
bequest should not be considered as a bad
omen. some persons
think that bequest is a sign of death or passing away soon, while bequest
is a kind of providence and farsightedness. so, if the verse tells us to
leave a bequest at the presence of death by saying: " when death
approaches (any) one of you, ...", it is for the reason that those moments
are the last occasions; else, an individual can lay down a bequest years
before the time of death.
some islamic groups have considered the bequest an obligatory
ordinance, but as it is understood from the phrase "...(this is) a duty on
the pious ones " this action
is voluntary, otherwise it would say: this is a
duty on the believers.
according to the attitudes of the islamic commentators and
jurisprudents, leaving a bequest is, of course, incumbent when the one is
in debt to people or there is a religious duty upon the one which must
be fulfilled. these duties may be such as: one fifth levy (khums),
poor-tax (zakat), performance of pilgrimage (hajj), etc., and in other
ordinary cases, similar to them, leaving a bequest is emphatically
praiseworthy.
by the way, in this verse, the arabic term ` khayr ' has been
applied for ` wealth ' to make it manifest that islam knows wealth a
good thing and a blessing from allah when it has been earned in a
lawful way and is spent alongside the path of the help and benefit of
people. this idea nullifies the wrong attitudes of those who think of
wealth substantially as a bad thing. islam hates those deviated
pretenders to piety who have not recognized the spirit of islam and
think of islamic piety as a quality equivalent to poverty. the wrong
thought and behaviour of such apparent believers cause the stagnation
of some islamic societies and, consequently, the development of the
exploiters.
in the meanwhile, this very meaning of the verse is a slight hint
to the idea that the logical abundance of wealth is lawful in islam. the
evidence is that the unlawful wealth that a person leaves behind in this
world is not ` fair ', but it is adversity and evil.
some islamic traditions indicate that the word `khayr', here, refers
to the considerable wealth that needs being bequeathed. therefore the
inconsiderable properties, which the heirs can divide between
themselves according to the canonical law of heritage, need not be
bequeathed. in other words, a small amount of wealth is not something
that one separates one third of it to leave a bequest for.1
the phrase: "...when
death approaches (any) one of you," is for the
statement of the last opportunity available for leaving down a bequest so
that if it be postponded, it may be missed. at any rate, it is fairly
appropriate that we, having forethought and utilizing our opportunity,
prepare ourselves by writing down our bequest. this manner, as it is
understood from the islamic literature, not only is good but also quite
admirable.
the messenger of allah said: " whosoever dies and has left a
bequest, has died as a martyr."
2 this meaning is considerably
mentioned
in some other traditions, too. then, it is from improvidence of a person
who imagines that leaving a bequest is a bad omen through which a
person pushes his death forward. but, bequeathing is a kind of
undeniable factual farsightedness which, although it might not prolong
the longevity, will surely never shorten the life time.
bequest restricted with the term / bil ma`ruf / (in a fair manner)
shows that a bequest must be reasonable in all respects. it should be
done in a fair manner both from the point of amount of wealth and in
respect of the person to whom the bequest is addressed, so that
customary law and common-sense know it rationally a good action; not a
sort of unjust discrimination which usually causes conflicts and deviation
from the limits of justice and truth.
when a bequest contains all the
abovementioned qualities, it is
respectable and sacred in all aspects. hence, any change or conversion
in it is forbidden and is counted unlawful (haram), as the verse itself
says:
" whoever then changes it (the bequest) after he has
heard it,
the sin thereof shall be on those who change it. ..."
and, if they imagine that allah does not
know their plots, they
are intensively in err, as it says:
"...surely allah is all-hearing, all-knowing."
this verse may also point to this fact
that the wrong actions
committed by the executor of testament never nullifies the reward of
the testator. when such an evil happens, the sin is only upon the
executor of testament who has changed something from the quality or
quantity of the testament or has interfered with the fundamentals of the
testament itself. yet, the testator will obtain his own concerned godly
reward whether the testament that he has left be changed later, in any
form, or not.
another probability has also been cited in the commentary of the
verse. it says that the purpose is: when the property of the dead, as the
result of the wrong actions of the executor of testament intentionally is
given to some ones who are not deserving of it, (and they are not aware
of that wrong action), there is no sin on them. so the sin is only on the
executor of testament who deliberately has committed such a wrong.
it should be also noted that there is no contradiction between
these two commentaries, and both can be gathered from the meaning of
the verse.
so far, concerning this islamic decree, it
has become quite clear
that any change, of any kind and of any amount, in testaments is a sin.
but, since there may be exceptions in a law or ordinance, then, in the
last verse of this group of verses, it says:
" but if any one fears injustice or sin on the part
of a testator,
and establishes agreement among them (the parties concerned),
then there is no sin upon him;
surely allah is forgiving, merciful."
thus, the exception is only due to the
instances where the
testament has not been arranged properly. it is only in this status that a
change made by the executor of testament is permissible. then, if the
testator is still alive, the executor must notify him/her of that intention
to change the testament, but if the testator has passed away, the
executor takes action on changing it himself. this situation, from the
point of the islamic jurisprudence, is restricted to the following cases:
1. when the testator has bequeathed more than one third of his
total wealth. according to the islamic literature based on the traditions
narrated from the holy prophet (p.b.u.h.) and the immaculate imams
(ahlul-bayt) (a.s.), a person can make a bequest on his wealth only up
to one third of it, since more than that is not religiously permissible in
islam.3
therefore, making bequest over the entire property benevolently
for good intentions, which is common among some unaware people, is,
regarding the islamic laws, perfectly wrong. so, the duty is upon the
executor of the bequest to decrease it up to one third of the remaining
wealth.
2. if the testator has bequeathed something of sin, transgression,
and evil to be performed, it is upto the executor to change it. for
example, when the testator makes bequest that a part of his wealth be
spent on the spread and development of some mischievous centers, or,
also, when the bequest causes a necessary duty to be abandoned
unreasonably, the executor is allowed to change it.
3. when something of the bequest brings about means of conflict,
corruption, or blood shedding, in this case, the circumstance should be
adjusted under the direction of the islamic judge.
by the way, the arabic term /janaf/, which means a deviation from
the path of justice and a unilateral inclination, hints to the deviations
that seize the testator unconsciously; while the term /'ithm/ (sin) refers to
the intended deviations.
the final phrase of the verse which says: "... surely allah is
forgiving, merciful " may
point to the fact that if the executor of
testament effectively removes or improves the wrong that the testator
has done and returns him to the right way, allah forgives him, too.
explanation:
the philosophy
of testament:
regarding the law of heritage,
only a particular group of relatives,
and with a definite portion, inherit the wealth. this situation may be in
the case that some other near and far relatives, or some of the close
friends and local people, are in dire need of some financial aid.
in addition to that, sometimes it happens that the religiously
ordained portion, ordained concerning the amount of heritage, is not
sufficient to supply the needs of some heirs.
the inclusiveness of the islamic laws does not let these gaps be
left unfilled. so, it has issued the law of testament alongside the law of
heritage. it lets muslims decide on one third of their wealth to be spent
after their death in a manner they like.
besides that, sometimes a person wishes to do some good actions,
but during his life-time he is not able to perform them, because of some
financial necessities that he has. the logic of intellect demands that he
decides on a part of the wealth, that he has suffered to earn during his
life, to be spent on these good affairs after his death, at least, and not to
be deprived of them.
all these circumstances have caused that the law of testament be
decreed in islam, and it has been emphasized with the phrase: " (this is a
duty on the pious ones."
testament is not restricted only to the above mentioned aspects,
of course, but a person should explain all his debts to people, the
deposits that others have given him to charge of, and the like of them in
the testament so clearly that there may remain no ambiguous subject
concerning the rights of men or the rights of allah which have been
upon him.
in islamic literature, testament is frequently emphasized on. for
example, a tradition narrated from the holy prophet (p.b.u.h.) says: " it is
not appropriate for a muslim believer to sleep at night except that his
testament is under his head."4
the phrase ` under his head ', mentioned in the above tradition,
is, of course, for emphasis and the purpose is that he must always be
prepared in this respect.
justice in testament
taking the abovementioned explanation about the lack of
transgression in testament in mind, there are many traces in islamic
traditions emphasizing upon the lack of ` transgression ' and ` damage '
in testament which, on the whole, indicate that as much as making a
testament is a good and worthy deed, the same quality transgression in it
is blameworthy and counted among grievous sins.
imam muhammad baqir (a.s.), in a tradition, says: " he who
regards justice in his testament is like the person who has given the same
amount as charity (in the way of allah) during his own life; but the one who
treats unfair in his testament will meet allah on the day of judgement while
he will have turned away his grace from him." 5
transgression, treating unfair, and damage in testament is that a
person bequeathes more than one third of his wealth and deprives the
heirs from their religiously lawful rights. or, he may make some undue
distinctions for the sake of his unreasonable loves and hatreds. in the
cases that the heirs are in dire need, even, the recommendation is that
bequeathing one third of the wealth be decreased to a quarter or one
fifth of the wealth. 6
when we study the islamic narrations and the statements of the
leaders of islam in relation to the subject, we understand the emphasis
and importance that they have considered for the existence of justice in
testament. the following tradition is one of the concerning instances:
once at the time of revelation, one of the men from the ansar
tribe passed away. he had some little children, but he had spent his
wealth on the path of allah in a manner that there remained no more
property from him. when the prophet (p.b.u.h.) became aware of it, he
asked: " what
did you do with that man? "
then, the people thereby
answered that they had buried him. the holy prophet (p.b.u.h.) said: "if
i had been informed of it before, i would not have permitted you to bury him
in the graveyard of muslims, because he has left his little children reduced
to beggary."
bequest, obligatory or recommended
as it was said before, making testament, in essence, is among the
emphatically recommended actions, but sometimes it becomes obligatory
for some people. for instance, when a person has neglected or failed to
pay the godly obligatory rights, or there are some things with him
belonging to people, (formerly deposited to him), and the one thinks
that their rights may be transgressed if he does not bequeath, then
bequeathing is obligatory. more important than that is when the
position of a person in a society is so that if he does not make a bequest
it is probable that the safe system of that society or their religion be
inflicted an irreparable severe blow upon. so, in all of these
circumstances, it is obligatory to bequeath.
bequest, is changeable during the life
the testator is not restricted by islam to what he has bequeathed
himself. a person is allowed to review the amount, the manner, and the
executor of the bequest as long as he is alive, because when the time
passes, circumstances may vary and his attitudes upon the
aforementioned subjects change, too.
this point is also necessary to be mentioned that we must make
use of bequest as a means of repairing our former shortcomings, in a
manner that even if some of our relatives had shown unkindness to us,
we dispaly affection to them by the way of testament.
it is cited in some islamic narrations that the leaders of islam
bequeathed some money especially for those relatives who were not
kind to them in order to attract their affection again.