الوصية literally means عهد.
In Islamic terminology it is a testament which should be acted upon after ones death. (I.e. A will).
It includes instructions, admonitions, monetary distributions, assignment of rights (حقوق), etc.
Evidence:
Abdullah Ibn Umar narrated that Allah's Messenger ﷺ said, "It is the duty of a Muslim who has something which is to be given as a bequest not to have it for two nights without executing a written will" [Bukhari]
(There's another narration in Muslim which says 'three nights')
Ibn Umar said, "Since I heard Allah's Messenger ﷺ say this, I've never spent a night without having my will with me"
This has two rulings (depending on the situation):
1) Obligatory
It becomes obligatory when someone has a right on you.
E.g. You've taken a loan which wasn't documented. No one knows about it except you and that person. You should write a will documenting it.
Many people take this matter lightly, although it's a duty.
2) Recommended
When there are no rights involved, and you want to do good for people or yourself, it becomes recommended.
E.g. You can write who you want to be the guardian of your children when you pass away.
"I assign in the terms of a will so-and-so as a guardian over my children"
E.g. You want to give a percentage of your money to charity or poor relatives who are not going to inherit you (because there is no will for the inheritors since they already have a share of inheritance).
Note: There's a verse in the Qur'an which commands the opposite of the aforementioned. In (2:180):
This is because the ruling of this verse was abrogated after the laws of inheritance were revealed.
How much should you set aside for الوصية? It is forbidden to bequeath more than 1/3rd and the best is to bequeath less than 1/3rd.
The first thing the inheritors should do after the person has passed away is fulfill the debts of the person. The Prophet would do this before offering the funeral prayer. This indicates its importance.
If you can avoid taking loans, then do so as much as you can.
Then they should execute the will of the deceased.
After this, the rest of the money should be given to the heirs.
The forbidden type of الوصية:
1) It is forbidden to bequeath anything to any of the legal heirs.
Only when the parents or wife are non-Muslims, and will not inherit, are you allowed to bequeath for them.
E.g. There are some people who leave extra for a certain son or daughter and this is حرام. Or some fathers, because they helped their eldest son to get married, will bequeath the same amount to the rest of his children. You can't do this either.
2) It is forbidden to make a will comprising of something حرام.
E.g. Someone requests for his body to be burnt after his death. This should not be executed.
3) It is forbidden to bequeath something that will be directed to any unlawful matter
E.g. Money that is going to be invested in temples, to buy musical instruments, etc.
4) The will of the person becomes void if the intention of the person is to harm his heirs.
E.g. He has children who are all good, save one. This person writes a will which excludes that child.
Or a person doesn't want his inheritors to inherit, and directs the money to someone else.
This type of will should not be honoured and can be adjusted by the executor to be according to Islamic law.
-> If the heirs are poor or in need then it is better for the person to leave it all behind for them.
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Q. Is it permissible for a parent to give some of their children gifts and not others during their lifetime?
A. Narrated: An-Numan bin Bashir, "My mother asked my father to present me a gift from his property; and he gave it to me after some hesitation. My mother said that she would not be satisfied unless the Prophet ﷺ made a witness to it. I being a young boy, my father held me by the hand and took me to the Prophet ﷺ. He said to the Prophet ﷺ, "His mother, bint Rawaha, requested me to give this boy a gift." The Prophet ﷺ said, "Do you have other sons besides him?" He said, "Yes." The Prophet ﷺ said, "Do not make me a witness for injustice." Narrated Ash-Shabi that the Prophet ﷺ said, "I will not become a witness for injustice."" (Bukhari)
Accordingly, the scholars said it is forbidden to differentiate between the children in gifts. Be fair.
If your parents insist on you taking, then you should divide it between your brothers and sisters.
If the father or mother gave a gift to one child for a legitimate reason, then it's permissible, with the agreement of the rest of the brothers and sisters. However, there are some scholars who said this is not permissible and the parent should give to all.
This refers to gifts which aren't part of obligatory expenditure. When it comes to obligatory needs you are allowed to differentiate.
E.g. My son needs to get married, but my other children don't need to now. Give everyone according to their need.
When it comes to voluntary gifts, you need to be fair in distributing it.
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