Q&A: Wills

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Question:

Among other aspects, my deceased father’s will also contains the following directives:

1. He has left behind the house to my mother.

2. He left his shop to my two brothers who had been assisting him in the business for more than 8 years.

3. One of my brothers who had left the family after a dispute and who had no contact with my father for many years has been excluded and disowned.

4. The will states that the estate must not be wound-up until the youngest child (my sister) does not turn 21. She is presently 17 years old.

Kindly advise as to the position of the above in the light of Shariah.

 

Answer:

Before dealing with the specific clauses mentioned in your father’s will, it is important to understand some fundamental aspects pertaining to the Islamic law of inheritance.

In Shariah a person does not have a free hand in disposing of his estate. He has to abide by the laws of the Qur’an and Hadith. Allah Ta’ala in His infinite wisdom has predetermined the shares of each heir. Thus any will which is drawn contrary to these directives is not valid. To execute such a will is also not permissible. The one who receives any portion of the estate in terms of the will which he is not entitled to according to Shariah is usurping the property of others. This not only destroys the barakah of his other halaal wealth, it also brings severe consequences in the Hereafter if not rectified before death.

 

AUTOMATIC HEIR

In terms of the Islamic law of inheritance it is not permissible to make a wasiyyat (bequest) for an automatic heir. The wife of the deceased and his children automatically inherit in his estate. Thus the bequest that the house should be given to your mother, or that the shop which belonged to your father be given to your brothers only, is null and void. Both the house and shop will be inherited by all the heirs according to their respective ratios stated in the Qur’an and Hadith.

 

DISOWNING HEIR

It is also not permissible to exclude any heir or disown him. Despite what is stated in the will, the estranged son of the deceased has already become an owner of the assets of the estate to the extent of his Shar’i share. The executors of the estate must ensure that the estranged son also receives his rightful share. If they wilfully uphold this invalid clause, they will also be sinful.

The directive to wind-up the estate only when the youngest child is 21 is unislamic. The heirs are deprived of their rightful property for years without any valid reason. Thus the estate should be wound up immediately. 

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