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fa-man baddalahū baʿda mā samiʿahū fa-ʾinnamā ʾithmuhū ʿalā lladhīna yubaddilūnahū ʾinna llāha samīʿunun
And should anyone alter it after hearing it, its sin shall indeed lie on those who alter it. Indeed Allah is all-hearing, all-knowing.
— Ali Quli Qarai
Surah Al-Baqarah, Verses 180-182
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 - (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 anyone 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."
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...”
Then, at the end of the verse, it adds:
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. 7 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 postponed, 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." 8This 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 above mentioned 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:
This verse may also point to this fact that the wrong actions committed by the executor of testament never nullify 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:
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 (S) and the Immaculate Imams (Ahlul-Bayt) (as), 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. 9
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 up to 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 / 'iθm / (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, inherits 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 (S) says: "It is not appropriate for a Muslim believer to sleep at night except that his testament is under his head." 10 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 (as), 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 Judgment while He will have turned away His Grace from him." 11
Transgression, treating unfair, and damage in testament is that a person bequeaths 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. 12 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 (S) 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 (S) 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 display 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.
Footnotes