Imam Qurtubi: Is an Islamic Will Mandatory?
al-Baqara Verse No:180
كُتِبَ عَلَيْكُمْ إِذَا حَضَرَ أَحَدَكُمُ الْمَوْتُ إِن تَرَكَ خَيْرًا الْوَصِيَّةُ لِلْوَالِدَيْنِ وَالأقْرَبِينَ بِالْمَعْرُوفِ حَقًّا عَلَى الْمُتَّقِينَ
Prescribed for you when death approaches [any] one of you if he leaves wealth [is that he should make] a bequest for the parents and near relatives according to what is acceptable – a duty upon the righteous.
This is the ‘Ayat of the Will’. It was revealed before the revelation of the statutory shares of inheritance and their laws… The word ‘wasiya’ can designate anything which someone instructs to be done whether during his lifetime or after his death. Custom, however, has designated it to be a declaration of what is to be done after death.
Scholars disagree about whether it is obligatory for those who leave property to make a will, although they agree that it is mandatory for those who hold deposits [for others] and have debts. Most scholars believe that a will is not mandatory for those who have neither of these. That is the position of Malik, as-Shafi, and ath-Thawri, whether a person is rich or poor. Another group including az-Zuhri and Abu Mijlaz say that making a will is mandatory, judging by the literal text of the Quran, whether a person has a little or a lot of wealth. Abu Thawr said that a will is only mandatory for a man who has a debt or wealth belonging to others and then it is obligatory for him to write a will, saying what he owes. As for someone who has no debts or deposits, it is not mandatory for him to make one unless he wishes to do so. Ibn al-Mundhir said, ‘This is good because Allah has made it obligatory to return trusts to their owners but it is not mandatory for someone who holds goods on trust to make a will.
The people with the first view use what is related from Ibn Umar as evidence. He said that the Messenger of Allah S, said, ‘It is not right for a Muslim man who owes something which he should specify in a will to spend two nights without making a written will.’ One variant says three nights. Those who argue the opposite say that, if it was mandatory, it would not have been left to the discretion of the one making the will.
If it is said that Allah’s use of the words, ‘prescribed for you’ means that it is mandatory, the answer to that is in the previous ayat. It is only when you want to make a will, and Allah knows best. an-Nakhai said, ‘The Messenger of Allah S died without making a will. Abu Bakr made a will. It is good to make a will but there is nothing wrong in not making one.’
Source: Tafsir al-Qurtubi
