Is making a bequest obligatory, and is it owed to non-inheriting relatives?

Ibn Hazm opens the Book of Bequests of al-Muhalla with three questions on which he departs from the three imams: a bequest is obligatory on everyone who leaves property; if someone dies without one, charity must be given on his behalf; and a bequest to relatives who do not inherit is obligatory. ^{1 5 3}

Ibn Hazm argues from Ibn 'Umar's report through Malik from Nafi': "It is not right for a Muslim who has something to bequeath to spend two nights without his will written down with him"; from Ibn 'Umar's saying that not a night passed after he heard it without his will beside him; and from Talha and al-Zubayr's strictness about bequests; he names as holding this view 'Abd Allah ibn Abi Awfa, Talha ibn Mutarrif, Tawus, al-Sha'bi, Abu Sulayman and all his school. ¹

He reports that others said it is not obligatory, arguing from Yahya al-Qattan's version through 'Ubayd Allah ibn 'Umar from Nafi', "something he wishes to bequeath", which leaves it to his wish; from the Prophet ﷺ's making no bequest; from reports that Ibn 'Umar made none and that Hatib ibn Abi Balta'a made none in 'Umar's presence; from Ibn 'Abbas's saying that eight hundred dirhams is too little for a bequest; from 'Ali's forbidding a bequest to one who left between seven and nine hundred; and from 'A'isha's saying that four hundred dinars left nothing over for a man's children. This, he says, is the view of al-Nakha'i, Abu Hanifa, Malik and al-Shafi'i. ²

He answers that Malik related it in the wording of obligation, as did Ibn Numayr and 'Abda from 'Ubayd Allah, Yunus from Nafi', and 'Amr ibn al-Harith from Salim from his father; both versions are sound, so the bequest is obligatory by Malik's version and the person is obliged to wish to make it. ^{2 6} The Prophet's bequest, he says, had already been made in his words "we prophets are not inherited from; what we leave is charity", a bequest of all he left as charity; what is soundly denied is only the bequest to 'Ali claimed by those he calls the Rafida. ⁶ He weakens the report that Ibn 'Umar made no bequest through Ashhal ibn Hatim and Ibn Lahi'a, the Hatib report through Ibn Lahi'a, and the Ibn 'Abbas report through Layth ibn Abi Sulaym; he notes that 'Ali's report sets a limit for "little" that they themselves do not hold; and he says that even if all were sound, other Companions oppose them, so the matter returns to the Qur'an and Sunna. ^{6 5}

Ibn Hazm holds that if someone dies without a bequest, something must be given in charity on his behalf, as the heirs or executor see fit without harm to the heirs; he cites 'A'isha's report of the man who said his mother died suddenly and would have given charity had she spoken, whom the Prophet allowed to give on her behalf, and Abu Hurayra (may God be pleased with him)'s report of the man who asked whether giving charity for his father, who died without a bequest, would atone for him, to which the Prophet said yes; atonement, Ibn Hazm notes, is only for a fault. ^{5 7} He relates that 'A'isha freed a slave on behalf of her brother 'Abd al-Rahman ibn Abi Bakr when he died in his sleep, and that Tawus said the family of one who dies without a bequest has the right to make one for him; he adds two mursal reports which, he says, his opponents set aside despite accepting mursal reports. ^{7 8}

Ibn Hazm lays down that every Muslim must bequeath to relatives who do not inherit, because of slavery, unbelief or exclusion by other heirs, whatever he is willing to give, with no fixed amount; if he does not, they are given what the heirs or executor see fit; if one or both parents are unbelievers or slaves, he must bequeath to them; three such relatives suffice; and relatives are those who share with him the forefather by whom he is known in lineage, and likewise on his mother's side. ³ He argues from al-Baqara 180 on bequests to parents and relatives, relating from Muslim ibn Yasar and al-'Ala' ibn Ziyad that it is for relatives, from Qatada that the parents were abrogated from it while relatives who do not inherit remained, and from Iyas ibn Mu'awiya that it is for relatives; Ishaq and Abu Sulayman, he says, held this. ⁹

He reports that al-Zuhri, Salim ibn 'Abd Allah, Sulayman ibn Yasar, 'Amr ibn Dinar, Ibn Sirin, Abu Hanifa, al-Awza'i, al-Thawri, Malik and al-Shafi'i said it is not obligatory, arguing from the man who bequeathed the freeing of his six slaves, his only property, among whom the Prophet drew lots, a bequest to non-relatives; he answers that nothing shows this came after the verse, that what preceded the verse is abrogated by it, and that nothing shows the man had non-inheriting relatives, and he wonders at their citing 'Abd al-Rahman ibn 'Awf's bequest to the Mothers of the Believers of a garden sold for four hundred thousand dirhams, and to the veterans of Badr. ^{9 4 10}

The schools' views are given only as Ibn Hazm reports them; they have not yet been added from the schools' own books, nor the Hanbali view, nor the remaining questions of the Book of Bequests in al-Muhalla.