Question
Please can help with the following query.
A person during his lifetime mentions to several persons that he made a niyah/intention that once he passes away a certain property must be given to Waqaf.
He will use the rent from the property until he lives but once he passes away it is waqaf.
This property is within limits of the 1/3rd for waqaf. This is also not stipulated in the written will.
We have two side to this some claim that it was just an intention nothing real, while others maintain it was a sincere intention.
Answer
The statement of the deceased to several people that once he passes away a certain property must be made Waqf will fall under the category of Wassiyat. Although it is not written in the Will of the deceased, various people were aware of the Wasiyyat of the deceased thus the heirs should fulfill the Wasiyyat of the deceased. His statement that “he will use the rent from the property until he lives but once he passes away it is Waqf” affirms his resolve and commitment of the Wasiyyat, that his property must be given in Waqf after his demise.
However, this type of Waqf which is suspended for after demise, will fall under the ambit of Wasiyyat, which means that it must not exceed one-third the value of his estate. According to the particulars furnished by you, the property is within the limit of one-third, thus the entire property will be given as Waqf, provided of course that the deceased had designated and stipulated a perpetual end-beneficiary to whom it should be given, such as a Madrasah, Masjid, the poor and destitute, etc.
Checked and Approved By:
Mufti Muhammed Saeed Motara Saheb D.B.
References
وركنها قوله أوصيت بكذا لفلان وما يجري بمجراه من الألفاظ المستعملة فيها ( قوله وما يجري مجراه إلخ ) في الخانية قال أوصيت لفلان بكذا ولفلان بكذا جعلت ربع داري صدقة لفلان ، قال محمد اجيز هذا على االوصية .
وقال أبو يوسف في سؤال عرض عليه وأما قؤلة : جعلت هؤ وصية ا يشترط فيها القبض والإفراز ا ه ملخصا .