Mu' meneen Brothers and Sisters,

As Salaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of you)

One of our brothers/sisters has asked this question:

As Salaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah`s Peace, Mercy and Blessings be upon all of you) ....

My question is divided in many parts:-

1. What is the value of a will left by a father for his Wife, Son and Daughter if it is written on a piece of paper with no witnesses to it, and this paper is produced by the Daughter?

2. If the deceased`s brothers interfere with the inheritance and create hurdles by siding with the Daughter and insist on the will rather than on SHARIAH which is insisted by the Wife and seconded by the Son as he is not in favor of his mother being left high and dry?

3. What is the position as per Shariah if one of the Inheritors pass away before the settlement of the inheritance? 

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Answer:

Will and inheritance

In the name of Allah, We praise Him, seek His help and ask for His forgiveness. Whoever Allah guides none can misguide, and whoever He allows to fall astray, none can guide them aright. We bear witness that there is none worthy of worship but Allah Alone, and we bear witness that Muhammad (saws) is His slave-servant and the seal of His Messengers.

One is well within one’s rights in Shariah to write or dictate a ‘will’ before their death if they wish to do so, but a few basic guidelines must be honored:

1. Because the exact shares of each of one’s legal heirs are prescribed by Allah Subhanah, one cannot add or subtract or bequeath any property to their legal heirs in their ‘will’.
2. One is at absolute liberty to bequeath upto a maximum of 1/3^rd of their property to any person or institution one wills and pleases, except one’s legal heirs.

Malik related from Ibn Shihab from Amir ibn Sad ibn Abi Waqqas that his father said, "The Messenger of Allah (saws) came to me to treat me for a pain which became hard to bear in the year of the farewell hajj. I said, 'O Messenger of Allah (saws), you can see how far the pain has reached me. I have property and only my daughter inherits from me. Shall I give two thirds of my property as ‘sadaqa’?' The Messenger of Allah (saws) said, 'No.' I asked 'Half?' He (saws) said, 'No.' Then the Messenger of Allah (saws) said, 'A third, and a third is a lot.’”

After one’s death, first and foremost the ‘will’ of the deceased will be determined, then the outstanding debts of the deceased will be honored, and then the rest of the wealth of the deceased will be shared by the legal heirs as prescribed by Shariah.

Allah Says in the Holy Quran Chapter 2 Surah Baqarah verses 11-14:

11 Allah (thus) directs you as regards your children's (inheritance): to the male a portion equal to that of two females: if only daughters two or more their share is two-thirds of the inheritance; if only one her share is a half. For parents a sixth share of the inheritance to each if the deceased left children; if no children and the parents are the (only) heirs the mother has a third; if the deceased left brothers (or sisters) the mother has a sixth. (The distribution in all cases is) after the payment of legacies and debts. Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by Allah and Allah is All-Knowing All-Wise.

12 In what your wives leave your share is a half if they leave no child; but if they leave a child ye get a fourth; after payment of legacies and debts. In what ye leave their share is a fourth if ye leave no child; but if ye leave a child they get an eighth; after payment of legacies and debts. If the man or woman whose inheritance is in question has left neither ascendants nor descendants but has left a brother or a sister each one of the two gets a sixth; but if more than two they share in a third; after payment of legacies and debts; so that no loss is caused (to anyone). Thus is it ordained by Allah and Allah is All-Knowing Most Forbearing.

13 Those are limits set by Allah: those who obey Allah and His Messenger will be admitted to Gardens with rivers flowing beneath to abide therein (for ever) and that will be the Supreme achievement.

14 But those who disobey Allah and His Messenger, and transgress His limits will be admitted to a Fire to abide therein: and they shall have a humiliating punishment.

Q-1: What is the value of a will left by a father for his Wife, Son and Daughter if it is written on a piece of paper with no witnesses to it, and this paper is produced by the Daughter?
Regardless of who produces the ‘piece of paper’ as the ‘will’ of their deceased loved one….as long as the legal heirs of the deceased agree or recognize that the ‘piece of paper’ is indeed written or dictated by their deceased loved one as his ‘will’, they should fear Allah Subhanah, and honor the ‘will’ to its letter in the memory of their deceased loved one. That would not only be piety and righteousness on their part in the Sight of Allah Subhanah, but it would be their obligatory duty to do so.

Q-2: If the deceased`s brothers interfere with the inheritance and create hurdles by siding with the Daughter and insist on the will rather than on SHARIAH which is insisted by the Wife and seconded by the Son as he is not in favor of his mother being left high and dry?
First and foremost, as we have clarified earlier, one is well within their rights to write or dictate a ‘will’ before their death in Shariah, if indeed they wish to do so….but one has absolutely no right, nor is it lawful for one who sincerely fears Allah and the Last Day to add, subtract, or alter the shares which are specifically assigned to each amongst the legal inheritors in Shariah.

If one were to write a ‘will’ which alters the prescribed shares of the legal heirs as prescribed by Shariah, such a ‘will’ will be deemed null and void in the Sight of Shariah Law.

Thus, lets assume that the deceased father is survived by his father, his mother, his wife, one son and one daughter, and the deceased father left wealth worth 10,000.00. If there was no ‘will’ and no ‘debts’ left behind by the deceased, the distribution of inheritance amongst the surviving legal heirs according to Shariah will be as follows:

1. The father of the deceased will receive 1/6^th or 16.67% or 1,666.67.
2. The mother of the deceased will receive 1/6^th or 16.67% or 1,666.67.
3. The wife of the deceased will receive 1/8^th or 12.50% or 1,250.00.
4. The balance (10,000 – 1,666.67 -1,666.67 – 1,250.00) 5,416.67 will be divided into three equal parts of 1,805.55, and the son will receive twice the share of the daughter. Thus the daughter will receive 1,805.55 and the son will receive (1,805.55 x 2) 3,611.00.

If the deceased left behind a ‘will’ which allocated no more than a third of the wealth to anyone other than one’s legal heirs, that ‘will’ be honored first, and then the balance amount will be distributed between the legal heirs according to their prescribed shares in Shariah.

But if (Allah forbid) the deceased left behind a ‘will’ stating that the wife of the deceased be given half the wealth when Shariah has prescribed only 1/8^th or 12.50% for her; or the ‘will’ states that 2/3^rd or 66.67% be given to the daughter when her lawful share according to Shariah amounts to only 18.05% (in the above scenario)….such a ‘will’ is not be honored and will be considered null and void in the Sight of Shariah.

Q-3: What is the position as per Shariah if one of the Inheritors pass away before the settlement of the inheritance? 

Whoever amongst the legal heirs are alive at the time of the death of the deceased will have their prescribed share in the inheritance of the deceased.

Thus if one dies, and at the time of their death, their mother, their father, their wife, one son and one daughter are alive, each amongst the surviving heirs will be allocated their share of the inheritance.

If one were to die, and for some reason there is a slight delay in the distribution of the inheritance….and during this period of delay, the mother of the deceased were to pass away….because the mother of the deceased was alive at the time of her son’s death, she will have her prescribed share in the wealth left behind by her son.

Thus, taking the above cited example, the 1/6^th or 16.67% or 1,666.67 share of inheritance of the mother of the deceased, who has passed away after the death of her son but before the actual distribution of inheritance, will now be distributed amongst her surviving legal heirs (her father, her mother, her husband, her sons and her daughters).

Whatever written of Truth and benefit is only due to Allah’s Assistance and Guidance, and whatever of error is of me alone. Allah Alone Knows Best and He is the Only Source of Strength.

Your brother and well wisher in Islam,

Burhan