Centuries before the trust was developed in English common law, Islamic law developed the waqf, or endowment. The waqf allowed a property owner to separate the title to a property from the entitlement to its revenues. Through the waqf ahli, or family endowment, created either during life or as part of a will, a Muslim could gain greater control over who received the benefits of her property. While extremely popular, such endowments could also lead to a great deal of conflict and litigation, particularly because they could continue in perpetuity. The use and characteristics of the waqf in pre-modern Muslim society can reveal a great deal about family life in those times. This post provides a “plain English” review of the article David S. Powers, The Islamic Family Endowment (Waqf), 32 Vanderbilt Journal of Transnational Law 1167 (1999).
Endowing Charity Forever?
Islamic inheritance law sets strict rules about how much a testator may leave to certain individuals and which heirs take a compulsory share. Muslims, like other people around the world, have long had a strong desire to control the allocation of their property after their deaths, and they sometimes did not wish to have it divided according to the traditional rules. This article discusses one of the legal devices developed to give grantors greater control over the disposal of their property, the waqf.
In pre-modern Muslim society, testators’ wishes were shaped by a complex set of considerations, just as they are today. Which people grantors wished to include and how much they wanted to give each beneficiary was influenced by personality, need, perceived merit, and a variety of other factors. However, there are many compulsory inheritance rules in Islamic law that can prevent testators from disposing of their property according to their preferences. Only up to one-third of a testator’s estate may be given via specific bequest, and there are limits on who may receive such bequests. The remainder of the estate is then divided up according to complex formulas–which the testator is powerless to change—and distributed to the legal heirs.
Waqf in Pre-Modern Muslim Society
Within the first few centuries of Islam, Muslims were creating devices to circumvent these rigid inheritance rules, and Muslim jurists were fairly cooperative in allowing them. Because lifetime transfers are not subject to the rules of inheritance, they became an important part of “estate planning” in pre-modern Muslim society. The most significant type of transfer used for this purpose was the waqf ahli, or family endowment. Though not mentioned in the Qur’an, the waqf dates from the first few centuries of Islamic law and rested on two principles: real property can be distinguished from its revenues, and real property can be sequestered forever. Following these principles, a Muslim could sequester a piece of his property, keeping the title but specifying beneficiaries to whom its revenues would be given. The class of beneficiaries could continue in perpetuity (i.e. all of the founder’s male descendants). In the case of the waqf ahli, a charitable entity was chosen to receive the property in case there ever ceased to be beneficiaries. A variety of documentary and literary sources attest to the popularity of the waqf in pre-modern Muslim society.
Under the Maliki school of law, a waqf could be created inter vivos or by a will. If established inter vivos, the waqf took effect immediately and could not be revoked. If the waqf was created by a will, it had to follow traditional inheritance law, meaning it could only be up to one-third of the testator’s estate. A lifetime waqf, however, was not subject to any size restrictions. For this reason, it seems that the inter vivos waqf was more common. The terms of the waqf were enumerated in a deed. The founder identified the first generation of beneficiaries, then specified a set of rules for passing the entitlement down through the generations.
The waqf ahli helped Muslims fulfill their religious obligation to provide for their families, but it also had a variety of practical purposes. The family endowment allowed founders to keep their property from being divided and make sure it stayed in the family, being used according to their wishes in perpetuity. While some scholars suggest that these transfers were specifically meant to deprive women of their inheritance rights, they were not always used that way. Though women were often only secondary beneficiaries or receive a smaller share, they were frequently included in the deeds along with their male relatives. In fact, the waqf ahli provided a way for founders to provide for male and female children equally, in contrast with the traditional inheritance rules, which provided that males took twice as much as females.
Despite the efforts of founders and legal experts, the waqf ahli was not foolproof. No matter how detailed the deed, unexpected situations could arise and lead to litigation. Conflicts over family endowments came in a few distinct forms. One was litigation between the beneficiaries and other heirs. Cutting out family members often led to litigation as disinherited relatives tried to capture a share of the financial benefits. Another type of conflict arose between beneficiaries and the founders themselves. Though the waqf was supposed to take immediate effect, founders often ignored this rule and continued to use the revenues for themselves, leading to litigation. Finally, disputes often arose years after the founder’s death regarding who was a beneficiary and how to transfer the entitlement to the next generation.
As testators continued to use the waqf ahli to get around Islamic inheritance law, more and more property became tied up in these perpetual endowments, leading to increasing amounts of litigation. Beneficiaries were bound to each other through their entitlements, and they had to protect their interests from one another as well as from outsiders. For these reasons, the records of family endowments and the litigation over them can teach us a great deal about the kinship structures and family values of pre-modern Muslim society.