Q: Please find attached a copy of
my grandfather's, Naser bin Mulhim, will which includes the stipulation that one third of the lands in Khadary and Maktumia is Waqf (endowment) and their harvest is to be distributed as mentioned in the will, in addition to another third of his palm trees, four in number. However, the four palm trees perished in addition to all the other palm trees and nothing left from them. I would like you to read the will and inform us whether the land of the four palm trees and the third of the remaining land of the palm trees are considered as Waqf that take the same ruling as that of palm trees, or they shall be distributed among the heirs.
After the Committee reviewed the question and the attached copy of the will sent by the questioner, it presented the following reply:
As for the testator's saying in the will "The third of all my palm trees amounts to these four palm trees," it is customary that when referring to palm trees that this includes the palm trees, their land, the well, water channel and the road amidst this land. `Urf (custom) is a legal principle upon which legal rulings are based in the absence of prohibitive Shar`y (Islamically lawful) evidence. As far as we know in this case, there is no Shar`y evidence that prohibits `Urf from settling it. As for the issue of the four palm trees, if they are provided with their share of the well, water channel and the road and are well protected, then this is a good way of averting dispute (Part No. 16; Page No. 296) and fulfilling one's duty, taking into consideration that the person who endowed the third of the land and these four palm trees is the owner himself. May Allah grant us success. May peace and blessings be upon our Prophet Muhammad, his family, and Companions.