Hadith 34195

Yahya said that he heard Malik say, "This ayat is abrogated. Itis the word of Allah, the Blessed, the Exalted, 'If he leaves goods,the testament is for parents and kinsmen.' What came down about thedivision of the fixed shares of inheritance in the Book of Allah, theMighty, the Exalted, abrogated it."Yahya said that he heardMalik say, "The established sunna with us, in which there is nodispute, is that it is not permitted for a testator to make a bequest(in addition to the fixed share) in favour of an heir, unless theother heirs permit him. If some of them permit him and others refuse,he is allowed to diminish the share of those who have given theirpermission. Those who refuse take their full share from theinheritance.Yahya said that he heard Malik speak about aninvalid who made a bequest and asked his heirs to give him permissionto make a bequest when he was so ill that he only had command of athird of his property, and they gave him permission to leave some ofhis heirs more than his third. Malik said, "They cannot revoke that.Had they been permitted to do so, every heir would have done that, andthen, when the testator died, they would take that for themselves andprevent him from bequeathing his third and what was permitted to himwith respect to his property."Malik said, "If he askspermission of his heirs to grant a bequest to an heir while he is welland they give him permission, that is not binding on them. The heirscan rescind that if they wish. That is because when a man is well, heis entitled to all his property and can do what he wishes with it. Ifhe wishes, he can spend all of it. He can spend it and give sadaqawith it or give it to whomever he likes. His asking permission of hisheirs is permitted for the heirs, when they give him permission whenauthority over all his property is closed off from him and nothingoutside of the third is permitted to him, and when they are moreentitled to the two-thirds of his property than he is himself. That iswhen their permission becomes relevant. If he asks one of the heirs togive his inheritance to him when he is dying, and the heir agrees andthen the dying man does not dispose of it at all, it is returned tothe one who gave it unless the deceased said to him, 'So-and-so - (oneof his heirs) - is weak, and I would like you to give him yourinheritance.' So he gives it to him. That is permitted when thedeceased specified it for him."Malik said, "When a man givesthe dying man free use of his share of the inheritance, and the dyingman distributes some of it and some remains, it is returned to thegiver, after the man has died."Yahya said that he heardMalik speak about someone who made a bequest and mentioned that he hadgiven one of his heirs something which he had not taken possession of,so the heirs refused to permit that. Malik said, "That gift returns tothe heirs as inheritance according to the Book of Allah because thedeceased did not mean that to be taken out of the third and the heirsdo not have a portion in the third (which the dying man is allowed tobequeath)."