> The last is some advise that I need for a delicate matter
> that I have been asked. It is about a Muslim Spanish brother
> who has inherited some money from his deceased father and
> wants to perform Hajj with that money.
> As we know it is haram in the four Madhhabs that a Muslim
> inherits from his kafir relatives. Nevertheless, I know that
> some fuqaha have allowed, as an exceptional case and only
> for the Muslims who live in Europe and America, that they
> inherit form their kafir relatives on the basis of some
> hadiths and that it was the position of Mu'awiya,
> Mu'adh b. Jabal from the Sahaba and Sa'id b. Musayyab and
> Masruq from the tabi'in. As we know there is a consensus
> on the impermissibility of making taqlid from a madhhab which
> is not one of the four. Although some ulama say that it is
> possible to go out of the four but in very specific and
> exceptional situations. In this case, there is a clear
> injustice because if it is the Muslim who dies nobody will
> prevent his kafir family from inheriting his property. Also,
> I know that for some time in Al Andalus there was in the
> 'Amal of Cordoba some cases which were based on the madhhab
> of al-Awza'i who is not from the four. So I will like your
> opinion and help in this delicate case.
We were asked about this same matter while we were in America
a few years ago by an American Muslim and the conclusions
we came to after studying this matter were:
a) There is a difference between wasiyah (bequests) and
b) Two of the basic differences between the two are: (a)
irth is for a specific set of individuals and (b) irth
is of a specific set amount. Thus, the basic difference
between these two is that one cannot "choose" the person
nor the amount to give with irth since it is set beforehand
by the Law Giver, but one *can* choose the person to give to
and the amount (albeit with some restrictions) with wasiyah.
c) After examining the way Western Non-Muslims leave "inheritance"
wealth, we see that they often arbitrarily *choose* the person
to give to and the amount. Thus, their concept of "inheritance"
is more like our concept wasiyah and less like our concept
d) Thus, we would label all wealth explicitly left by non-Muslims
to Muslim relatives as a wasiyah and not as irth. This is more true
since la wasiyta lil warith does not hold true for Muslim
relatives of non-Muslims since they are not warithin
technically-speaking because of the difference of their
e) There is consensus in the Maliki school that it is valid to
give bequests to a person of a different religion. Thus,
a Muslim may give to a non-Muslim and a non-Muslim may give to
f) Thus, the answer to the question is, this is just a mix-up of
terminology. Our irth is not their "inheritance". Their
inheritance is more like our "wasiyah".
The short answer is that if the above is true, the man may keep
the wealth. After he takes hold of the wealth, it has become his
property. And like any of his property, he may decide what to
do with as long he is alive. Thus, he may use it for Hajj,
buy a personal possession with it, give it away in charity, etc.
al-Qawanin al-Fiqhiyyah, volume 1, Book of Inheritance,
Chapter 10 (Bequests), section 1, essentials 1 & 2:
"wa l-musiyy wa huwa malikun mumayyizun ... wa tasihhu
mina s-sabiyyi l-mumayyizi .. wa mina l-kafir illa
an yusi bikhamrin aw khizirin limuslim."
"wa l-musa lahu wa huwa kullu man utasawwaru lahu
al-milku min kabirin aw saghirin, hurrin aw `abdin
sawa'un kana mawjudan aw muntadhara l-wujudi ka l-hamli
illa l-warith fala tajuzu lahu ittifaqan [lakin] in
ajazaha sa'iru l-warathati jazat `inda l-arba`ah
khilafan li dh-dhahiriyyah . . ."-