A third at most
Saʿd ibn Abī Waqqāṣ asked the Prophet ﷺ whether he could give away two thirds of his wealth, then half. He said no, then: "A third, and a third is a lot. Leaving your heirs well off is better than leaving them dependent, asking people for help" (Ṣaḥīḥ Muslim, no. 1628).
In all four schools the third is counted on what remains after the funeral costs and the debts (al-Durr al-Mukhtār, p. 761; Mawāhib al-Jalīl 6/406; Mughnī al-Muḥtāj 4/7; Kashshāf al-Qināʿ 10/232). The Ḥanafī, Shāfiʿī and Ḥanbalī schools measure it at the death; the Mālikī school measures it on the day the bequest is carried out (al-Mawsūʿa al-Fiqhiyya al-Kuwaytiyya, a secondary source).
A bequest above a third
In the Ḥanafī school, the sound view of the Shāfiʿī and Ḥanbalī schools, and one Mālikī opinion, the part above a third waits on the heirs: if they consent it takes effect, if they refuse it falls away. Their consent completes the bequest; it is not a new gift from them (al-Mawsūʿa al-Fiqhiyya al-Kuwaytiyya 30/254, 43/258–259).
The other view, held in the Mālikī school and as one opinion among the Shāfiʿīs and one narration among the Ḥanbalīs, is that the excess is void even with consent. For the Mālikīs an heir who agrees is then making a gift of his own, which needs his capacity, acceptance and handing over (al-Zuḥaylī, a secondary source).
Consent binds only the heirs who give it; the others keep their full shares (al-Mawsūʿa al-Fiqhiyya al-Kuwaytiyya; Kuwait Law 51 of 1984, art. 247). When there are no heirs at all, the Ḥanafī and Ḥanbalī schools let the bequest take the whole estate and the Shāfiʿī school voids the excess; for the Mālikī school the sources we checked don't settle this.
When the heirs' consent counts
Ḥanbalī: only consent or refusal after the death counts, so heirs who agreed earlier may still refuse, whether the testator was healthy or ill when they agreed (Ibn Qudāma, al-Mughnī 8/405, from Aḥmad). Shāfiʿī: consent or refusal during the testator's life has no effect (Mughnī al-Muḥtāj 4/73).
Ibn Qudāma reports the same from Abū Ḥanīfa and his companions; the sources we checked give no Ḥanafī text of the school's own. He reports Mālik as holding that consent given while the testator was healthy may be withdrawn, but consent given in his final illness binds (al-Mughnī 8/406); we did not read a Mālikī text on it.
The statutes of Jordan (Law 15 of 2019, art. 274), Syria (art. 238) and Kuwait (art. 247) count only consent given after the death; Syria and Kuwait also require the heir to have full legal capacity. In the Shāfiʿī school, consent from a minor, an insane heir or one under interdiction does not count, nor does a guardian's on their behalf (Mughnī al-Muḥtāj 4/73).
A bequest to an heir
The Prophet ﷺ said: "God has given everyone with a right their right, so there is no bequest for an heir" (Sunan al-Tirmidhī, no. 2121, graded ḥasan ṣaḥīḥ by al-Tirmidhī). Ibn Ḥajar calls the chain of Abū Umāma's report of it good (al-Talkhīṣ al-Ḥabīr 3/202).
First view: the bequest is valid but waits on the other heirs' consent after the death. This is the Ḥanafī position as al-Mawsūʿa al-Fiqhiyya al-Kuwaytiyya reports it, the stronger view (al-aẓhar) of the Shāfiʿī school (Mughnī al-Muḥtāj 4/73), the Ḥanbalī position (al-Mughnī 8/396) and one Mālikī opinion.
Second view: it is void even if they consent, and heirs who want it carried out make a gift of their own. This is the Mālikī position (Ḥāshiyat al-Dasūqī 4/427), the other Shāfiʿī view and one Ḥanbalī narration. Who counts as an heir is judged at the death in the Ḥanafī, Shāfiʿī and Ḥanbalī schools; for the Mālikī school the sources we checked don't settle this.
Several bequests and a third that is too small
If the heirs consent, the bequests are paid in full, and if together they exceed what there is, they share it in proportion. If the heirs refuse, the Mālikī, Shāfiʿī and Ḥanbalī schools, and Abū Yūsuf and Muḥammad among the Ḥanafīs, divide the third in proportion to what each person was left: bequests of a half and a quarter share the third 2 to 1 (al-Mawsūʿa al-Fiqhiyya al-Kuwaytiyya 43/291–293).
Abū Ḥanīfa first cuts any claim above a third down to a third, then divides: the same bequests of a half and a quarter share the third 4 to 3. The Kuwaiti statute (art. 285) and the Syrian statute (art. 258) divide the third in proportion.
The Mālikī school also puts some kinds of bequest ahead of others when the third is too small; on the full order the sources we checked don't settle this.
This page explains the fiqh. Whether a will, a consent or a share is legally valid in your country is for its courts, notaries or registries to decide.
Worked examples
Every share below is computed by the calculator's engine when this page loads. Open any example to change the family and see what moves.
| Heir | Ḥanafī |
|---|---|
| Wife | 1/8 |
| Son × 2 | 7/10 |
| Daughter | 7/40 |
Sources
Volume and page numbers are those of the printed editions. Works marked secondary report the schools' views from outside them.
- Ṣaḥīḥ Muslim, Kitāb al-Waṣiyya, no. 1628 (3/1250–1251)
- Sunan al-Tirmidhī, no. 2121 (3/621–623)
- Ibn Ḥajar, al-Talkhīṣ al-Ḥabīr 3/202, no. 1369
- al-Ḥaṣkafī, al-Durr al-Mukhtār, p. 761
- al-Ḥaṭṭāb, Mawāhib al-Jalīl 6/406–407
- al-Sharbīnī, Mughnī al-Muḥtāj 4/7, 4/73
- al-Buhūtī, Kashshāf al-Qināʿ 10/232
- Ibn Qudāma, al-Mughnī (ed. al-Turkī) 8/396, 8/405–406
- Ḥāshiyat al-Dasūqī 4/427
- al-Mawsūʿa al-Fiqhiyya al-Kuwaytiyya 30/253–254, 43/258–259, 43/291–293 (secondary)
- al-Zuḥaylī, al-Fiqh al-Islāmī wa-Adillatuh (secondary)
- Jordan, Law 15 of 2019, art. 274Unofficial text; check the official gazette
- Syria, Personal Status Law, arts. 238, 258Unofficial text; check the official gazette
- Kuwait, Law 51 of 1984, arts. 247, 285Unofficial text; check the official gazette