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A Will against Islamic Inheritance Law: Applicable

Question and answer details
Zarina
2012/12/04
As-salamu `alaykum. My dad passed away a year and a half ago, leaving behind an English will stating all his kids, wife and sisters get an equal share. Recently we found out the property is still in my late grandfather’s name! Now, how should we divide the property as three of his sisters are still alive and what percentage does my mum get as she has nowhere to go and is living from one sister’s house to the other? Both my brothers have said they will not look after her. Please, help. Jazaka Allah khayran.
Monzer Kahf
Answer

Wa `alaykum as-salamu wa rahmatullahi wa barakatuh.

In the Name of Allah, Most Gracious, Most Merciful.

All praise and thanks are due to Allah, and peace and blessings be upon His Messenger.

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Dear sister, thank you for trusting us and for your question that shows your commitment to apply Shari`ah rulings in dividing your father’s estate among the heirs.

First of all, we have to remind you that all your mother’s needs are your responsibility; you are ordained to provide all her needs. Moreover, you cannot finance her from your zakah, if any of you has zakatable money, as financing her is your duty. Also, it would be so easy to do that if you distributed the roles and shared the tasks.

As for the will, it should not violate the inheritance law in Islam.

In his response to your question, Dr. Monzer Kahf, a prominent economist and counselor, states,

Dear Sr. Zarina

You are raising several issues at once; let us take them one by one:

1. “Your mother has nowhere to go”, but she is your mother and you and your brothers and sisters are all responsible for her housing and all living needs at the level you live on. Those of you who are better off are more responsible than the others.

2. If the property which is in the name of grandfather was in fact owned by him, it must be distributed to his heirs who include his own children (on the day he died plus the children of any deceased children who died before him), his wife and his father and mother whoever survived him. Then you go to distribute the share of your father in that property to his own heirs.

3. If the property was in fact owned by your father but left for any logistic reason under the name of his father, then your father’s heirs deserve it. The English will is not valid.

The Shari`ah division of estate is mandatory as clearly stated in verses 11,12, 13 and 14 of Surat An-Nisaa’. Please, read them and look at the emphases at the end of 11and 12 and the meaning of 13 and 14.

Any other will is not valid except for the following:

1) ALL HEIRS MUST BE REMOVED FROM IT;

2) It is reduced to the one third of the estate only.

The shares given in the verses 11 and 12 are mandatory and should not be disturbed by any will. The heirs of your father varied whether having boys and girls or only girls. If his children include at least one boy, his sisters do not inherit from him (in this case they get only by virtue of his will to a maximum of one third of the estate to be divided between them equally); if he has girls only they then inherit (in this case they can’t get anything by virtue of will; further it is not a matter of choice between this and the will; this is mandatory as it is clear from the verses and the Prophet’s Hadiths about sisters with daughters).

Your mother under all cases gets 1/8 (an eighth) of his estate after executing the will as stated above. The remainder 7/8 should be distributed to you and your brother(s) and sisters as follows: a share of a male is twice as much of a share of female; if one daughter (e.g., you) gets 1/2 and your aunts get the other 1/2; if you are more than one daughter, 2/3 is to be divided between you equally and the remaining 1/3 is to be divided between your aunts equally too.

The will’s distribution is not accepted in Shari`ah as it violates the mentioned verses.

Allah almighty knows best.


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