6th August 2015
السلام عليكم و رحمة الله و بركاته
Can you please clarify the following question regarding inheritance. My father who is deceased left the following properties in his name. To the best of my knowledge, they were purchased by my father and no other party contributed financially in purchasing the properties. The net cash has already been distributed in a sharia-compliant manner.
Business properties * 2
Marital home * 1 (Currently occupied by my mother, my brother his wife & kids). My Father made a request in his WILL that all properties including marital home should be transferred into the name of my Mother on his Death. Subsequently In my mother’s WILL (as a request of my father) all properties are scheduled to be divided equally between my oldest brother and his 3 children who currently reside in the marital home. None of the rightful heirs have challenged this & are financial stable in their own right, and all want to maintain family unity.
With a view to maintaining Sharia compliance & Family unity
Question 1 : Should the above 3 properties be included or excluded in my father’s estate and how to do it in a manner that fulfils my father’s & mother’s wishes, the rights of all the people residing in the marital home, the permanent need for them to still reside in the marital home without fear of any demands and maintain Sharia compliance.
Question 2: As a result of this, will my mother’s Will need updating accordingly
الجواب حامداً و مصلياً
In the name of Allāh, the Most Gracious, the Most Merciful
Answer
1: The outset of your query clearly suggests two main concerns; the first is questioning the legitimacy of the above-method distribution and secondly, the ethical approach of providing an alternative solution whereby it does not contravene the Shar’ee principles whilst maintaining the family unit. In the first point, Allāh I has stipulated in the Holy Qur’ān the shares of all the legal beneficiaries, so to intentionally overlook this command is a sin. In principle, your father’s total estate [which includes all the properties that he was the sole owner of during his lifetime] must be distributed proportionately between all his legal heirs [his wife, sons and daughters] according to the Quranic injunctions. This cannot be compromised. As far as the second point is concerned, one suggestion could be that the children willingly gift their share respectively to their mother after receiving them. It is permissible for the children to relinquish their rightful share of their father’s estate for their mother’s sake provided that everyone consents to it. No one has the right to coerce if they choose not to.
2: Yes, your mother’s Will needs amending. The Messenger of Allāh e said, “There is no Will for the inheritors”, which means that no Will is to be made for the inheritors’ share because their share has already been assigned by Allāh I in the Holy Qur’ān. She must state in her Will that her estate, which includes the house on her name, must be distributed amongst her children [not including her grandchildren] according to the Shar’ee principles. But if all mutually consent to gift their share to the son who is living with her then that is permissible.
[Allãh Knows Best]
Written by (Mufti) Abdul Waheed
Answer Attested by Shaykh Mufti Saiful Islam
JKN Fatawa Department