De Making A Will Regarding Pilgrimage
73:
If a person on a deathbed has an obligation to perform a pilgrimage and has adequate means, he must make sure that it will be performed after his death, even by directing in his will and in the presence of witnesses. However, if he has no adequate means but thinks somebody will donate for his pilgrimage he must direct that in his will. If he dies, one must be performed from his gross estate as must also be done if he has made a general direction about it without qualifying that its expenses be defrayed from his bequeath able one-third. However, if he directs that the pilgrimage be performed from his one-third and the expenses can be met from the one-third of the estate, then the expenses must be paid for from that portion and must take precedence over all other directions in the will. If the bequeath able one-third of the estate is insufficient to meet the expenses of the pilgrimage, the balance must be defrayed from the entire estate.
74:
It has been said that if a person dies without having performed the obligatory pilgrimage but leaves a deposit with a person who fears that if he paid the deposit to the heirs, they will not have the obligatory pilgrimage performed on behalf of the deceased, it is obligatory on that person to perform the pilgrimage himself on behalf of the deceased and pay the heirs only the balance, if any, left after meeting the expenses of the pilgrimage. However, all this is arguable.
75:
If a deceased dies without having performed the obligatory pilgrimage and leaves debts and liability of khums and zakaah and his estate is not sufficient to discharge all these obligations, then if the property on which the khums and zakaah became payable is available, the khums and zakaah must first be paid from it. If there is khums and zakaah still payable, then the pilgrimage will take precedence over their settlement but the settlement of debts takes precedence over the pilgrimage.
76:
If a deceased dies without having performed the obligatory pilgrimage, it is not permissible for the heirs to spend for the estate without first meeting the expenses of the pilgrimage, whether the estate is sufficient to meet the expenses or not. However, there is no objection relating to transactions made after provision has been made for the expenses of the pilgrimage.
77:
If a deceased dies without having performed the obligatory pilgrimage and his estate is not sufficient to meet the expenses of having it performed, the available assets must be applied towards the repayment of debts, khums and zakaah and the balance be distributed among the heirs. It is not obligatory on the heirs to supplement the expenses of the pilgrimage from their personal property.
78:
If a deceased dies without having performed the obligatory pilgrimage, it is not necessary to pay for the expenses of the pilgrimage from the country of the deceased. It is sufficient to pay from the meeqaat. Indeed, it is sufficient to appoint an agent from the meeqaat closet to Makkah. As a matter of high precaution, if the estate is large, it is better to pay for the expenses from the country of the deceased. If the estate is very large and the heirs have decided definitely to have the pilgrimage performed, then expenditure from the estate is permissible. This is also the rule in respect of the debts of the deceased. However, if the cost from the country of the deceased is higher than the cost from the meeqaat, the share of the young heirs must not be utilised to meet the cost.
79:
If a deceased dies without having performed the obligatory pilgrimage, it is obligatory to have it performed in the year of the death. If it is not possible to find an agent from the meeqaat in that year, it is obligatory to send an agent from the country of the deceased and defray his expenses from the gross estate. It is not permissible to delay it to the succeeding year even if it is known that in the following year, it will be possible to engage an agent from the meeqaat. However, if the cost from the country of the deceased is higher than the cost from the meeqaat, the share from the young heirs must not be utilised to meet the cost.
80:
If a deceased dies without having performed the obligatory pilgrimage and it is not possible to obtain an agent at the ordinary fee, it is obligatory to engage one even at a higher than the usual remuneration and defray the expenses from the gross estate. It is not permissible for the heirs to postpone the pilgrimage to the following year even if some of them are young. However, if the cost from the country of the deceased is higher than the cost from the meeqaat, the share of the young heirs must not be utilised to meet the cost.
81:
If some of the deceased persons heirs consider that there was the obligation on the deceased to perform the pilgrimage and some do not, it is not obligatory on those who consider so to have the pilgrimage performed except to the extent of their shares of inheritance. If necessary, in the ultimate, they must litigate those who did not consider so in order that their shares in the estate are also utilised to defray the expenses. The same rule applies if there is a disagreement on a question of debt. However, if the shares of those who consider so are not adequate to meet the expenses of the pilgrimage, it is not obligatory on them to subsidise the deficit from their personal properties.
82:
If a person dies without having performed the obligatory pilgrimage, and a person performs one on his behalf gratuitously, it is not obligatory on the heirs any longer to have one performed themselves and the cost that would have been incurred on the pilgrimage will revert to the heirs for distribution among them. However, if the deceased had directed that the pilgrimage be performed from his bequeath able one-third, the cost that would have been incurred on the pilgrimage will not revert to the heirs but should be spent on some good cause or alms in his name.
83:
If a person dies without having performed the obligatory pilgrimage but directs in his will that an agent be appointed from his town to perform one, then it is obligatory to do so. However, the excess of the remuneration over what would have been paid if the agent was appointed from the meeqaat will be met from the bequeath able one-third of the estate. If, in the will, he directs that the pilgrimage be performed without more, then it is sufficient to appoint an agent from the meeqaat unless he expresses an intention that the agent be appointed from his town, for example by fixing a sum for the pilgrimage which would equal the remuneration for the agent from the town.
84:
If a deceased directs in his will that the agent be appointed from his town but the executor or heir appoints one from the meeqaat, the appointment is invalid, if the remuneration was being paid from the estate of the deceased. However, the obligation of the deceased will be discharged by the performance of the agent.
85:
If a deceased directs in his will that an agent be appointed to perform a pilgrimage from another town or country, for example, from Najaf, it is obligatory to act on it and the expenses in excess of what would have been payable to an agent appointed from the meeqaat will be met from the bequeath able one-third of the estate.
86:
If a deceased directs in his will that an agent be appointed to perform an obligatory pilgrimage on his behalf and fixes the remuneration, it is obligatory to act upon it. The remuneration should be paid from the gross estate if it does not exceed the usual remuneration, but if it does, then the excess must be borne by the one-third bequeathable portion.
87:
If a deceased directs in his will that an obligatory pilgrimage be performed on his behalf from an identified property and it is in the knowledge of the executor that there is liability of khums or zakaah on the property, these must first be settled from the property. The balance should then be applied towards the expenses of the pilgrimage. If it is not sufficient to meet the expenses, the deficit must be subsidised from the gross estate if the obligation of the deceased was for Hijjatul Islam, otherwise the balance must be spent in good cause of the kind in which the deceased would have wished to donate.
88:
If it becomes obligatory to appoint an agent to perform an obligatory pilgrimage on behalf of a deceased person and the one on whom it became obligatory delays the appointment so much that the property from which the appointment would have been made is lost, he is personally responsible and it is obligatory on him to appoint an agent from his personal property.
89:
If it is known that the pilgrimage had become obligatory on the deceased but it is doubtful if he had performed it, then it is obligatory to have it performed on his behalf and its expenses must be met from the gross estate.
90:
The obligation of the deceased is not discharged by the mere appointment of an agent to perform a pilgrimage on his behalf. If it becomes known that the agent did not perform the pilgrimage for good reason or not, it is obligatory to appoint another agent and meet the expenses from the gross estate. If the original agent was paid from the estate, it is obligatory, if possible, to recover the sum from him.
91:
If a person volunteers to become an agent and is prepared to charge a lesser than usual remuneration, he must be appointed if the payment is being made from the estate. Taking into account the size of the estate, an agent must be appointed on the basis of his respectability and nobility and for this purpose it is permissible to pay a higher remuneration.
92:
Whether the appointment of the agent is obligatory from the country of the deceased or meeqaat is determined by the mujtahid followed by the heir or the heir's ijtihad' and not of the deceased. If the faith of the deceased was that it was obligatory to appoint an agent from his country but that of the heir is that it is permissible to appoint one from the meeqaat, it is not obligatory on the heir to appoint one from the country of the deceased.
93:
If the pilgrimage had become obligatory on a deceased who does not leave any estate, it is not obligatory on the heir to appoint an agent; however, it is recommended specially for his relatives that they do so.
94:
If a deceased directs by his will that an obligatory pilgrimage be performed on his behalf and it becomes known that it was Hijjatul Islam, then the expenses must be paid from the gross estate unless he has expressly directed that the expenses be borne from the bequeathable one-third. If it becomes known to the one directed that the pilgrimage was other than Hijjatul Islam or if there is doubt on the matter, then the expenses must be paid from the one-third.
95:
If a deceased directs in his will that an obligatory pilgrimage be performed on his behalf and names the person to be appointed as the agent, then it is obligatory to comply with the direction. If the agent does not accept the appointment except for a higher than the usual remuneration, the excess must be borne by the one-third portion of the estate if the pilgrimage was Hijjatul Islam.
96:
If a deceased directs in his will that an obligatory pilgrimage be performed on his behalf and fixes the sum to be paid to the agent but the sum is such that it is not accepted by anyone, then if the obligation of the deceased was for Hijjatul Islam, it is obligatory to make up the difference from the gross estate. If it was not for Hijjatul Islam, the sum fixed for the remuneration must be used for a good cause of a kind in which the deceased would have wished to donate.
97:
If a person sells his house for a sum and makes a condition with the purchaser that he should spend the sum on the performance of an obligatory pilgrimage after his death, then upon his death the sum will form part of his estate. If the pilgrimage to be performed was Hijjatul Islam, the condition becomes operative and it is obligatory to spend the sum on the remuneration for the pilgrimage if it does not exceed the usual remuneration. If it does, then the deficit will be met from the one-third of the estate. If the pilgrimage was for other than Hijjatul Islam, the condition is still valid and the whole remuneration will be paid from the one-third. If the one-third is not sufficient to meet the expenses, the condition is not operative in respect of the shortfall.
98:
If a person donates, for example, his house to another on the condition that he should perform a pilgrimage on his behalf after his death, the condition is valid and operative. It ceases to be the property of the donor and will not form part of his estate after his death even if the pilgrimage is optional and the testamentary rules will not apply. The same rule applies to a transaction in which the owner of the house passes ownership to another so that after his death the other should sell the property and spend the proceeds to have a pilgrimage performed for him. In such a case, the condition is valid and operative even if the pilgrimage is optional and the heirs have no right in the property. If the donee fails to fulfil the condition, the right in the property does not shift to the heirs but to the executor or a mujtahid and if he cancels the transaction, the property reverts to the estate of the deceased.
99:
If an executor dies and it is not known whether he appointed an agent before his death, it is obligatory to appoint an agent from the estate if the pilgrimage is Hijjatul Islam and from the one-third if it is not. If the executor had taken possession of property to expend on the pilgrimage and it is available, it should be repossessed. If there is a doubt that the executor paid the agent from his property and then reimbursed himself from the property of the deceased and such property is not available, the executor is not responsible as there would be doubt that it may have been lost without being wasted.
100:
If the property is lost in the hands of the executor without waste on his part, he is not responsible and an agent must be appointed from the remainder of the estate if the pilgrimage is Hijjatul Islam and from the one-third if not. If the remainder had already been distributed among the heirs, a sum sufficient for the remuneration of the agent should be recovered from them in the proportion of their shares. The same rule applies if a person is appointed an agent and dies before the performance of the pilgrimage without leaving any estate or if it is not possible to recover from his estate.
101:
If the property is lost in the hands of the executor before the appointment of an agent and it is not known if it was lost by reason of the negligence of the executor, it is not permissible to exact compensation from the executor.
102:
If a deceased directs in his will that a certain amount be spent on a pilgrimage other than Hijjatul Islam and there is doubt that it is in excess of the bequeath able one-third, it is not permissible to spend the whole of the amount without the consent of the heirs.

THE RULES ON PILGRIMAGE BY AGENT (NIYABAH)
Rule 103: Qualifications of an agent:
First: Puberty: An obligatory pilgrimage performed by a minor as an agent of another is not valid, whether it is Hijjatul Islam or any other even if the minor is intelligent. However, it may be correct to say that an optional pilgrimage performed by a minor as an agent of another with the approval of his guardian is valid.
Second: Intelligence: - A pilgrimage performed as an agent by a person of unsound mind is not valid, whether the disease is permanent or intermittent if the pilgrimage is performed when affected. However, there is no objection to him performing as an agent of a lunatic.
Third: Faith - As a matter of precaution, a person who is not a twelver cannot become an agent even if he were to perform the pilgrimage in accordance with the rules of our faith.
Fourth: There must be no obligation on the agent himself, which he would be carrying out, to perform an obligatory pilgrimage in the year in which he is appointed. If he is unaware or unmindful of his obligation he can be appointed an agent. This condition affects the validity of the appointment of the agent, not the validity of the pilgrimage of the agent. Thus, even if there was an obligation on the agent to perform a pilgrimage personally, the obligation of his principal for the performance of the pilgrimage will be discharged. However, the agent will not be entitled to the stipulated remuneration but only the usual amount.
Rule 104:
It is not necessary that the agent should be righteous (Adil) but he must be reliable in the performance of the pilgrimage on behalf of the principal.
Rule 105:
The principal on whose behalf the pilgrimage is performed will become discharged from his obligation only upon the valid completion of the pilgrimage by the agent. It follows that the agent must be conversant with the performance of the pilgrimage and its rules even if by following the guidance of another in all the ceremonies. When a doubt arises in his performance of the ceremonies during the pilgrimage, he can ignore it.
Rule 106:
There is no objection to the appointment of an agent for an intelligent minor or a person of unsound mind. Indeed, an agent must be appointed if the pilgrimage became obligatory on a person of unsound mind during his period of sanity but died insane.
Rule 107:
There is no requirement that the principal and agent should be homogeneous. The appointment of a male agent for a female principal and vice versa is valid.
Rule 108:
There is no objection in appointing as an agent a person who has not been to a pilgrimage before, whether the principal had been on pilgrimage before or not. The gender of the agent or the principal does not matter. Some scholars say that it is discouraged to appoint as an agent a person who has not been on a pilgrimage before, but this is not proved. However, in the case of a principal who is is alive but has not been able to perform the Hijjatul Islam or had a pilgrimage fixed on him but died before performing it, it is preferable to appoint as an agent a person who has not been on pilgrimage before.
Rule 109:
It is necessary that the principal must be following Islam and the appointment as an agent for an infidel is invalid even if the infidel has died with means. If his heir is a Muslim, it is not obligatory on him to appoint an agent to perform an obligatory pilgrimage for the deceased and an enemy of Ahlul Bait is also regarded as an infidel except that it is permissible for a son of such a person himself to perform an obligatory pilgrimage for his father if he is a twelver, but not for the relatives. However, a twelver can perform a pilgrimage and dedicate it to a relative who is an enemy of Ahlul Bait.
Rule I10:
There is no objection in appointing an agent to perform an optional pilgrimage for a living person, whether gratuitously or for reward. The same is the rule in respect of an obligatory pilgrimage for a person who is disabled from performing it personally. Except for this reason it is not permissible for a living person to appoint an agent to perform a pilgrimage on his behalf. An appointment of an agent for a dead person is always valid, whether gratuitous or for reward and whether for an obligatory or an optional pilgrimage.
Rule 111:
It is necessary for the validity of the agency that the intent must be to perform the pilgrimage on his behalf. A principal who should be a definite and identified person. Although it is not necessary that his name be uttered, it is recommended that the principal be remembered in all the ceremonies.
Rule 112:
Just as the performance of an obligatory pilgrimage is valid whether it is gratuitous or by permission, so is it valid if it is for reward or in fulfilment of a condition of marriage.
Rule 113:
It is apparent that the agent must act as if the pilgrimage is for himself with regard to the rules on disabilities and as they would have applied to him in his pilgrimage and also the rules relating to the order of the ceremonies.; In the result a pilgrimage can be valid in one case but not in another. For example, if the disability occurs during the stay at Arafaat, he can choose the emergency stay and the pilgrimage is valid and the principal released from the responsibility. However, if he was unable to remain in Arafaat for either the normal or the emergency stay, his pilgrimage is invalid.
It is not permissible to engage a person who knows he will be unable to perform some of the ceremonies, whether the pilgrimage is performed by the agent gratuitously or not. However, there is no objection in engaging a person who knows that he will move under a shade or will omit ceremonies which would not invalidate the pilgrimage even though the omission was deliberate, like tawafun Nisah or staying in Mina for the evenings of 11th or l2th.
Rule I14:
If the agent dies before wearing ihram, the pilgrimage is not valid for the principal and it is obligatory to appoint another agent to perform the pilgrimage again. If the agent dies after wearing ihram, the pilgrimage will be valid and it is clearly so if he dies after wearing ihram in the precincts of the Holy Mosque. There is no difference in this regard between Hijjatul Islam and other obligatory pilgrimages when the agency is for reward.
Rule 115:
If the agent dies after wearing ihram and entering the Holy Mosque, he is entitled to his full remuneration if his appointment was to have the deceased discharged from his obligation. However, if his appointment was to perform certain ceremonies, he will be entitled to so much of the agreed remuneration as would be commensurate with the ceremonies performed by him and if he died before wearing ihram, he would not be entitled to anything. However, if the part relating to preliminaries is included in the agreement of the agency, then he would be entitled to the remuneration proportionate to the task undertaken by him.
Rule 116:
If the appointment was from the country of the principal but the route to be taken by him to Makkah was not specified, the agent is free to choose his route. However, if the route has been laid out in the agreement, it is not permissible to disregard it. If the agent proceeds by another route but completes the ceremonies, then if the provision of the route in the agreement of agency was only as a condition, and not a specific term of the agreement, the agent is entitled to his full remuneration. However, the other side is entitled to repudiate the agreement for the breach of the condition in which event the agent will be able to recover only the usual remuneration paid for the pilgrimage and not the agreed remuneration. If the specified route was a term of the agreement, the other side can again repudiate it. If it is repudiated, the agent is entitled to the usual remuneration for the parts of the agreement he performed but not for the route he took and the parts with which he did not comply will be ignored. However, if it is not repudiated, the agent is entitled to the agreed remuneration.
Rule 117:
If a person agrees to become an agent for another to perform an obligatory pilgrimage in a specified year and then agrees with another person to perform an obligatory pilgrimage on his behalf in the same year, the second agreement is invalid. The two remuneration would be valid if they are charged in respect of different years or if one or both of them were not to be performed immediately.
Rule I18:
If a person agrees to perform a pilgrimage as an agent in a specified year, it is not permissible for him to do so in an earlier or subsequent year than that specified without the consent of the person who appointed him. However, the principal will be discharged from obligation by the performance in the different year. But the agent will not be entitled to claim his remuneration if he hastened or delayed the pilgrimage without the consent of the person who appointed him.
Rule 119
If an agent is prevented or blocked from performing the ceremonies, the same rules apply to him as would have applied to the principal if he had been performing the pilgrimage personally. These rules will be set out below. If the agency agreement was confined to that year, it becomes annulled. If it is not so confined, the liability to perform it remains on his shoulders but the person who had appointed the agent can repudiate it if there was a condition that the pilgrimage be performed in that year.
Rule 120:
If the agent commits an act which attracts a penalty (kafarah), he must meet it from his personal property, regardless of whether the agency is gratuitous or for reward.
Rule 121:
If the remuneration for the pilgrimage is a fixed sum which proved insufficient for the expenses of the pilgrimage, it is not obligatory on the appointor to subsidise the deficit just as if the remuneration proved in excess of the expenses, the agent would not be obliged to refund the excess.
Rule 122:
If a person is appointed an agent to perform an obligatory or an optional pilgrimage but vitiates it by having intercourse before reaching Mash'ar, it is obligatory on him to complete the pilgrimage and it will be valid for the principal. It is obligatory on the agent to perform an obligatory pilgrimage in the ensuing year and pay a penalty but it is obvious that he is entitled to his remuneration. If he does not perform the pilgrimage in the ensuing year, far good reason or without, the rule still applies requiring him to perform the pilgrimage at his own expense.
Rule 123:
Although by the agreement of agency, the remuneration becomes the property of the agent, it is not obligatory to make payment to him until he has completed the pilgrimage unless there was express agreement for earlier payment. It is clear that the agent can stipulate that the remuneration be paid before the pilgrimage, for generally it is not usual that an agent should proceed on the pilgrimage and undertake all the ceremonies without having received the remuneration.
Rule 124:
If a person is appointed an agent, he cannot substitute another person for himself without the consent of his appointor.
Rule 125:
If a person is appointed an agent to perform Hajj-ul-Tamatoo in good time but per chance the time becomes short and the agent changes the Umrat-ul-Tamatoo into Hajj-ul-Ifraad and after completing it performs the Umrat-ul-Mufradah, the obligation of the principal will be discharged. However, the agent will not be entitled to his remuneration if his appointment was conditional on the performance of the ceremonies. If, on the other hand, it was conditional on the obligation of the deceased being discharged, he will be entitled to the remuneration.
Rule 126:
If the pilgrimage is optional, there is no objection to the agent performing it on behalf of a number of persons. With regard to obligatory pilgrimages, an agent can perform it on behalf of one person only except if the pilgrimage has become obligatory on two or more persons jointly. For example, if two persons make a vow that they will together with a third jointly contribute towards the remuneration of an agent to perform a pilgrimage, then in such a case it is permissible for them to appoint one agent on their behalf.
Rule 127:
If the pilgrimage is optional, there is no objection to a number of persons becoming agents in one year on behalf of one person, living or dead, gratuitously or for reward. The same rule applies to obligatory pilgrimages, if they are many. For example, there may be two pilgrimages obligatory on a person, living or dead, in respect of two vows, or one of them may be Hijjatul Islam and the other obligatory by reason of a vow. In such circumstances, it is permissible to appoint two agents, each to perform one of them. Similarly, it is permissible to appoint two agents, one of them in respect of an obligatory and the other an optional pilgrimage. It is not far from correct to say that two persons can be appointed agents for the same obligatory pilgrimage like Hijjatul Islam as a matter of precaution in the fear that the pilgrimage of one of them may be spoiled.
Rule 128:
To make tawaaf for oneself has been recommended. It is permissible to appoint an agent to do so on behalf of a deceased and also a living person who is away from Makkah or although he is in the city is unable to perform it himself immediately.
Rule 129:
There is no objection to an agent performing an Umrat-ul-Mufradah for himself or another person on completion of the pilgrimage for which he was appointed. Likewise, he can then make tawaaf for himself or another person like Hijjatul Islam as a matter of precaution in the fear that the pilgrimage of one of them may be spoiled.
Rule 128:
To make tawaaf for oneself has been recommended. It is permissible to appoint an agent to do so on behalf of a deceased and also a living person who is away from Makkah or although he is in the city is unable to perform it himself immediately.
Rule 129:
There is no objection to an agent performing an Umrat-ul-Mufradah for himself or another person on completion of the pilgrimage for which he was appointed. Likewise, he can then make tawaaf for himself or another person.

OPTIONAL PILGRIMAGE
Rule 130:
It is recommended to perform an obligatory pilgrimage, if it were possible, even if one does not have the required means or has already performed the Hijjatul Islam. It is recommended to do so each year for those who can afford it.
Rule 131:
It is recommended that at the time of departure from Makkah, one makes the intention to return there.
Rule 132:
It is recommended to send on obligatory pilgrimage someone who does not have the means to perform it himself. It is also recommended to take a loan to proceed to obligatory pilgrimage if one can make the repayment later. It is recommended to make much expense during the pilgrimage.
Rule 133:
It is permissible for a person who receives zakaah from the share of the poor to spend it on a recommended pilgrimage.
Rule 134:
It is a condition for the performance of an optional pilgrimage by a married woman that she should obtain the consent of her husband. That is also the rule for a woman in iddah arising on a revertible divorce but not for a woman in iddah arising on a final divorce. A widow who is still in iddah of her late husband can perform a pilgrimage without anyone's consent.