Miscellaneous Inheritance Issues

Q. One of the heirs sold the car and furniture of his deceased mother after her death. He usurped the money for himself. When the heirs are paid should this heir too receive his full share despite the usurpation?

A. No, he should not be paid his full share. The value of the car and furniture should be deducted from his share and the balance given to him.

Q. A woman is survived by her husband, four daughters, one son, father and mother. Do her parents inherit? Two Aalims gave the verdict that the parents do not inherit.

A. The two characters to whom you have referred as ‘Aalims’ are in fact Jaahils – morons and impostors. That parents are never deprived of inheritance is a basic mas’alah known to all and sundry. It is not an intricate issue. For persons known as ‘Aalims’ to deprive parents from inheritance is intolerable. Their ignorance is shocking and lamentable. The inheriting heirs of the deceased woman are her husband, father, mother, son and 4 daughters. The shares are as follows: Husband: One quarter of the estate; Father: One sixth; Mother: One sixth. The balance of the estate should be divided into six equal shares. Each daughter will receive one share and the son two shares. The division could also be effected by dividing the whole estate into 72 equal shares, and apportioning out as follows: Husband 18 shares; Father 12 shares; Mother 12 shares: Son 10 shares; Each daughter 5 shares.

Q. A man repudiated his share of inheritance in his deceased brother’s estate. He says that the other heirs should take his share as well. How does his repudiation affect the distribution?

A. His repudiation is not valid. Even if he states in writing his repudiation or refusal to inherit, it is of no consequence. He remains an inheritor. The distribution is not affected in any way whatsoever. His share should be set aside and delivered to him physically. After he has taken possession of his assets, he will be free to do as he pleases. But prior to possession, his repudiation is invalid. If he refuses to take possession of his assets, it will have to be held in trust for him until he changes his mind. If he dies before taking possession, his assets should be given to his heirs.

Q. A married woman committed adultery and a child was born. Will this child inherit in her husband’s estate? Will a DNA test to determine paternity be valid in the Shariah?

A. According to the Shariah, the child will inherit. Since the child was born in wedlock, the Shariah rules that it is legitimate. DNA tests have no validity in terms of the Shariah regarding legitimacy or illegitimacy of a child.

Q. My mother wishes to give all her assets – her entire estate – to her daughters. She has no sons. She does not want her brothers and sisters to inherit. Is this permissible?

A. Your mother’s intention for her desire to give her assets to her daughters is unholy and sinful. Her intention to deprive those whom Allah Ta’ala has designated to be heirs is like declaring war against Allah Ta’ala. May Allah Ta’ala save us from the evil of our nafs and the plots of shaitaan. Allah Ta’ala is our Creator. He knows best who have to inherit. It is not permissible to interfere with Allah’s Law and then meet Him in a state of Wrath. Try to convince your mother that she should not leave this miserable world with Allah’s Curse on her head. Does she want to meet Allah Ta’ala in the state of Divine Wrath?

Q. A man who passed away has minor children. The adults in the house are freely using the property and all the assets of the deceased. What is the Shariah’s ruling?

A. It is not permissible to indiscriminately use the assets of the deceased’s estate. It is Waajib for the heirs to determine the shares of all inheritors, especially of the minors as soon as possible – in fact, immediately after the burial of their father. The assets should be apportioned out and the shares of the minors have to be held in trust. A monetary value for the shares of the minors in the assets which are in daily use should be fixed and that amount be kept in trust. It is haraam to utilize the assets while the shares of the minors have not been alienated.

Q. I am a divorcee with two minor daughters. Their father recently passed away. The father had cash and also owned a house. Do these two children inherit? They have been given nothing. Who is responsible for their maintenance?

A. Your two daughters according to the Shariah inherit jointly two thirds of all the assets of their deceased father. His mother inherits one sixth of the estate of her deceased son. The balance which is one sixth will be for the deceased’s father if he was alive at the time of his son’s death. If he was not alive, then the one sixth will go to his brothers and sister. The major part of the estate (two thirds) belongs to his two daughters. The maintenance of the two children has to be paid from the estate of the deceased, that is, from the two thirds share of the daughters. Their father has committed a huge sin and an act of grave injustice for not leaving an Islamic Will.

Question:

What would happen in the case where the father passed away and owned a property. The heirs consist of the deceased mother, his wife, sons and daughters. Whilst the father was still alive the son extended onto the father’s house. The extension was built with monetary assistance of the father and monetary input of the son. The son lived for +- 10 years on the property without paying any rental except for water and electricity. The will which is in accordance of Shariah makes no note of the extension. The estate is in the process of being winded up and the house subsequently sold. How will the estate be devided taking the extension onto the house into consideration.

Answer:

(1) The estate of the deceased must be distributed as follows: Mother inherits one sixth of the entire estate, Wife inherits one eighth of the entire estate. The balance has to be divided among the sons and daughters with each son receiving twice the amount a daughter receives. (2) The extension on the house also forms part of the estate of the deceased. All the heirs will share in it according to their respective shares mentioned above.

Question:

A man has three sons, one living and working with him, the other two having very little connection with him. The man is preparing his will and desires to bequeath the greater part of his estate to the son who was always with him. Is this allowed in the Shariah?

Answer:

According to the Shariah it is not permissible to discriminate in the fixed shares allotted by the Shariah to the heirs of one’s estate. Death cancels one’s right of property and ownership. The estate of the deceased has to be distributed in accordance with the Qur`aanic injunctions. In this case the estate after the death of its owner will have to be distributed evenly (i.e. three equal shares) among the three sons. However, the father may during his lifetime make a gift to the son who is with him.

Question:

The Shariah permits bequests of up to one third of one’s estate. Is it permissible to make one’s son a beneficiary of such a bequest in addition to the share which he will be receiving?

Answer:

It is not permissible to make any heir a beneficiary of a bequest. It is permissible to make a Wasiyat (bequest) on behalf of only non-heirs.

Question:

A woman died and left the following relatives: husband, father, mother, three sons, two daughters, paternal uncle (father’s brother), and paternal aunt (father’s sister). How should the deceased’s estate be distributed Islamically?

Answer:

In this case the paternal uncle and paternal aunt do not inherit from the deceased’s estate. Divide the whole estate into twelfths, i.e. twelve equal parts, and allocate as follows:
Husband: three-twelfths (3/12) or one quarter of the whole estate.
Father: two-twelfths (2/12) or one sixth of the whole estate.
Mother: two-twelfths (2/12) or one sixth of the whole estate.
Three sons and two daughters: to receive balance of estate which is equal to five-twelfths (5/12) of the whole estate. Note that the balance of five-twelfths has to be divided into eight equal shares of which each son receives two shares and each daughter one share.

We illustrate this case by means of an example for further clarification.

Let the whole estate be R8400.

Husband’s share = three-twelfths, which amounts to R2100
Father’s share = two-twelfths, which amounts to R1400
Mother’s share = two-twelfths, which amounts to R1400
Balance of five-twelfths which amounts to R3500 to be divided into eight equal shares, each share equalling R437,50. Thus each son receives R875,00 and each daughter R437,50.

Question:

Is it allowed to make a conditional Wasiyyat which will come into operation after one’s death? Say, for example, one will be getting a thousand rand’s share dividend annually and one makes the Wasiyyat that after death this annual income be distributed to the poor in the event of the deceased’s family (wife and children) being in good financial position. However, if they happen to be in financial difficulty then the thousand rand share has to go to the family.

Answer:

A conditional Wasiyyat (bequest) is permissible, but the case cited by you is not permissible. Death cancels one’s right of property in one’s wealth, hence the division and distribution of the estate of the deceased takes place only in accordance with the rules of the Shariah, the will or choice of the deceased recognised in only a lawful Wasiyyat. The Shariah permits one to make Wasiyyat in not more than one third of one’s total estate, and the Wasiyyat cannot he made in favour of any of the heirs (those who will inherit according to Islamic Law). The Wasiyyat is made in favour of a non-inheritor.

Question:

I have inherited from my late father a considerable sum of money by way of an insurance policy. I have not yet received the money, but will be receiving it soon. Is it lawful for me to inherit this “insurance” money which I am given to understand is not Halaal?

Answer:

Insurance contracts are Riba transactions and Riba is a crime worse than fornication. The “gain” of Riba is strictly Haraam. It is not permissible to inherit any Haraam wealth. All Haraam wealth in one’s possession have to be given in a charitable cause IF the rightful owners or their heirs cannot be located, and an insurance company is not the rightful owner of the Haraam wealth in its coffers. Calculate the amount your late father “deposited” with the insurance company in the form of “premiums”. You will be entitled to only the amount paid in by your father to the insurance company. The excess which is Riba will have to be given in charity, and as is the case with such “charities” from Haraam wealth, it is not permissible to make a Niyyat of Thawaab when effecting the “charity”, for Rasulullah (sallallahu alayhi wasallam) said that to give charity with Haraam is like washing garments with urine. And, Allah knows best.

Question:

A daughter worked in her father’s shop for several years. She was not paid wages nor was a wage agreed for her. She was, however, allowed to take from the shop whatever she required. After the father’s death she claims that he owed her wages for all the years she had worked, hence the estate of her deceased father is indebted to her. Is her claim valid in the Shariah?

Answer:

She has no claim according to the Shariah. She is not entitled to any wages since there was no work and wage contract with her father. She cannot demand any payment from the estate of her father.

Question:

Should a Muslim draw up a Will? How should the deceased’s assets be distributed according to the Shariah?

Answer:

It is compulsory to draw an Islamic Will, especially in a non-Muslim country or even in a Muslim country where the Law of Islam is not the Law of the State. The shares of the inheritors have already been determined by the Shariah. A person has no say and no option in fixing shares for inheritors. There are ready-prepared Islamic Will forms available.

Question:

The only relatives which a man has is an adopted daughter and his sister. In his will he leaves his entire estate to his adopted daughter. He completely deprives his sister of any inheritance. How should his estate be divided according to the Shariah?

Answer:

The adopted daughter is not an heir. She does not inherit in his estate. If his only relative is his sister, then she will inherit his whole estate. The will of this man is baatil and haraam. If he wishes her to receive something of his estate, he should make a wasiyyat (bequest) which should not exceed one third the value of his assets.

Question:

The only relatives a man has are two full brothers and three half sisters (same father, but different mothers). How should his estate be divided among them?

Answer:

Only his full-brothers inherit. The estate will be shared equally by them. The half-sisters do not inherit in this case.

Question:

If one of the brothers (in the above question) dies, leaving children, will they inherit in their uncle’s estate. Their father died before the uncle.

Answer:

The children of the pre-deceased brother will not inherit in their uncle’s estate. The whole estate will be inherited by the deceased’s one brother.

Question:

The deceased is survived by his parents, 2 brothers, 2 sisters, nephews and 4 nieces (from his brother’s side). How should his estate be distributed?

Answer:

Only his parents will inherit. His mother gets one sixth of all the assets and the father takes the remaining five sixths.

Question:

A man passes away leaving no wife, no parents, no grandparents, no brothers, but 9 sisters, and no paternal uncles, but one paternal aunt. How will his estate be distributed?

Answer:

His estate will be divided into nine equal shares. Each sister will get one share.

Question:

A woman who has died had no husband, no parents and no children. She is survived by two sisters, step-brothers and step-sisters. The step-brothers and step-sisters and the deceased woman are of the same father but different mothers. Among her relatives she also has one son of a predeceased brother, and three sons of a predeceased sister. How should her estate be distributed?

Answer:

Her heirs are her two full-blooded sisters and her Allaati brothers and Allaati sisters. (The step-brothers and step-sisters here are known as Allaati). The sons of the predeceased brother and predeceased sister do not inherit in this case. Her two sisters inherit two thirds jointly of all her assets. They will share the two thirds equally between themselves. The remaining third will be inherited by the Allaati brothers and Allaati sisters. Each brother will get twice the share of the sister.

Question:

Is it true that the penalty or consequences of incorrect discharge of inheritance overtake the guilty one within 30 years?

Answer:

The consequences of evil usually befall the criminals quickly. They don’t have to wait for 30 years. We are not aware if there is any narration mentioning 30 years.

Question:

The executors of my late father’s estate gave me only R12,000 from my share of R68,000. They refuse to give me my share on a lump sum. They say that I spend wildly. Are they allowed to withhold my inheritance?

Answer:

If you are an adult with a mature mind — i.e. you are not mentally affected — then it is not permissible for them to withhold your inheritance. But if you are a person who spends wildly in haraam activities, then they are entitled to dole out your inheritance to you in dribs and drabs to save you from ruining yourself in this world and in the Aakhirah.

Question:

A daughter worked several years in her father’s shop. No wage was agreed on. He would give her sums of money as she required. She lived with him and did not have to pay for food, etc. Now after the death of the father she claims that his estate owes her for the few years she had worked in her father’s shop as she was not paid any wages. Is her claim rightful?

Answer:

She has no valid claim in her father’s estate with regard to wages. She is not entitled to any wages since no such agreement was made with her father. While she will inherit in his estate, her claim for wages is baseless and should be dismissed.

Question:

My husband has transferred the house on my name. He says that he has done so to protect me. Have I become the owner of this property? Will any of my husband’s heirs inherit in the house after his death?

Answer:

You do not become the owner of the house simply by the transfer into your name. Your husband may have some other reason for having transferred the property into your name. His statement: “To protect you.”, does not make you the owner. If he wants to make you the owner, he has to make an explicit declaration stating that he has gifted the house to you and that you are its owner now. You have to verbally state your acceptance of the gift. He should also have a written document drawn up to clearly confirm that he has gifted the property to you. Let witnesses also sign the document. His heirs should be notified. If these measures are not taken, your husband will remain the owner and all his heirs will inherit in the house.

Question:

During a man’s last illness he made a gift of a vehicle to one of his relatives who is not an heir. What is the position of this gift? Is it valid?

Answer:

A gift made during maradhul maut (the last sickness in which the person dies) has the effect of a wasiyyat. It is valid in one third of the estate. If the value of the vehicle is not more than one third the value of all the assets of the mayyit, the gift is valid. If it is more than one third the value of the assets, it will be valid only in one third of the value of the estate. The donee will have to pay in the amount which is in excess of one third. However, if all the adult heirs voluntarily uphold the gift, it will be valid. But the share of any minor heir may not be compromised. The consent of a minor is not valid. The minor will inherit his/her full share.

Q. The deceased is survived by his wife, two nephews (sons of his brother) and two nieces (daughters of his brother). How should his assets be divided?

His wife inherits one quarter of his estate. The two nephews will take the remaining three quarters and share it equally. The nieces do not inherit.

Q. A man directed in his will that as long as his wife is alive the house may not be sold. Only after her death should the house be distributed among the heirs in accordance with the Shariah. Is this condition valid?

It is not permissible and not valid in the Shariah. The heirs inherit in all the assets immediately on the death of the testator. It is their right to take possession of the house and decide what to do with it. The mayyit’s wife is entitled to only her share which is one eighth if he is survived by children. If no children, then her share is a quarter.

Q. My wife’s brother passed away recently. After burial the wife gave away all his clothing and other personal belongings without consulting his mother, sisters and brothers. Was this correct for her to do? Much hurt has been caused by her action.

She had no right whatsoever to give away any of the belongings of the deceased. Every heir has his right in every item of the mayyit’s assets. She has to pay all the other heirs the value of the goods she had misappropriated and given away.

Q. Is the following Trust valid in the Shariah? The terms of the Trust are:
• During my lifetime, my wife and I are the executors. The asset of the trust is our house.
• Upon my death, my wife becomes the executor.
• Should she remarry or leave the house, she is deprived and will receive nothing.
• None of the heirs can ask for any share as long as the remaining spouse is alive.
• The trust can be dissolved only on her death and the assets will be shared by the remaining heirs according to the Shariah.

The formation of such a trust is haraam. Every stipulation in this trust is haraam. On the death of a person, his/her heirs are entitled to immediately claim their Shar’i shares. No heir may be deprived of his/her share.

Q. The deceased is survived by a daughter and her two sons and one daughter; and also by two grandsons (his son’s sons). He leaves no sons. How should his estate be distributed?

His daughter inherits one half the estate. The other half will be taken by the two grandsons (son’s sons) and divided equally between them. The daughter’s children do not inherit.

Q. Under the Group Areas law my father was forced to sell his property to the previous white government. A price far below its market value was paid by the then government. After many years, the present government has adequately compensated us. My father has passed away many years ago. He was survived by four sons, two daughters and a wife who is still alive. One of the sons has subsequently passed away. How should this money be distributed? A Maulana says that since this money is a gift from the government, the Shariah’s laws of inheritance do not apply. It should be shared equally by the heirs of my father. Is this correct? 

It is not correct. The money which was received from the present government is directly related to the property which had belonged to your father. The payment has thus in actual fact been made to your father, hence the Shariah’s Law of Inheritance will apply. Even if we have to assume that the money is a gift from the government, then the argument of equal sharing is devoid of substance. If it is a gift, the questions arise: Who is the owner of the money? To whom is the owner making the gift? If it is argued that the government is the owner, then we shall have to revert to the government for clarification on the issue of the beneficiaries of the gift. And, if it is truly a gift, the Shariah no where orders that equal sharing has to be effected. The gift has to be distributed in accordance with the instructions of the donor. It is quite apparent that the government is not making any gift, but is compensating the deceased for his property which was usurped by the previous government. The money is the substitute of an asset which had belonged to the mayyit, hence the mayyit’s heirs will inherit the money in accordance with the Shariah’s Law of Inheritance. His wife gets one eighth. The remaining seven eighths should be divided into 10 equal shares of which each son will get two, and each daughter one share. The share of the deceased son has to be transferred to his heirs.

Q. After a man has died, his wife claims that he had made a gift of the house to her. No one is aware of this and the heirs do not accept her claim. What is the ruling?

If the woman has no valid evidence to prove that her husband had gifted her the house during his lifetime, her claim will not be accepted. In the absence of knowledge and other evidence, the heirs are entitled to refute her claim. The house is part of the deceased’s estate.

Q. A man took out an insurance policy for his wife. She is the sole beneficiary. After he died, the insurance company paid out a large sum to the wife. Can she accept this money for herself in view of her poverty?

She may not use the interest inspite of her poverty. The interest has to be compulsorily given to other poor persons. The actual amount which her husband had contributed towards the insurance policy is part of his estate which belongs to all the heirs according to their respective inheritance shares.

Q. A dispute developed among the heirs of the deceased regarding the value of the assets, etc. The matter was taken to the non-Muslim court by one party. Later an out-of-court settlement was reached. The legal fees were considerable. Should these fees be deducted from the assets of the estate, and the balance then distributed to the heirs?

No, the legal fees should not be deducted from the assets of the mayyit’s estate. The party responsible for this haraam legal action is liable for the fees. It is the problem and debt of that party, not of the heirs who had defended the action. The dispute had to be decided by the Ulama, not by the law of kufr. It is haraam to make the other heirs suffer for the unlawful action of the one party.

Q. A man marries a widow who has two minor children. Will these children inherit in his estate?

They do not inherit in his estate.

Question:

A man took out an insurance policy in the name of his son. The son has died. Is this insurance policy part of the estate of the deceased son?

Answer:

It is not part of the deceased son’s estate. The insurance policy is haraam. Only the amount which was paid to the insurance company in the form of premiums, etc. belongs to the father, not to the deceased son. The excess has to be compulsorily given to charity without a niyyat of thawaab.

Question:

I want to leave an Islamic Will. Is such a will valid in this country?

Answer:

An Islamic Will is valid provided that one’s marriage has not been registered in community of property. If the blunder of community of property has been committed, it is then essential to get it cancelled. Once it is cancelled, the Islamic Will is valid and distribution of the deceased’s estate in accordance with the Shariah is ensured by the law of the land.

Question:

A man has been living with a woman for many years without Nikah. However, he married in court. He also has a wife with whom he is married Islamically. He has children by both women. Will the children of the woman with whom he did not perform Nikah inherit in his estate? The man has now died.

Answer:

The court or ‘civil’ marriage is not Nikah. The man was living in the state of adultery all these years with the woman since he never had a Nikah performed. The children of this adulterous union are all illegitimate. They will not inherit in the estate of their biological father. According to the Shariah he is not their lawful father. Adultery does not give rise to rights.

Question:

Is it permissible to make a bequest in favour of one’s grandson (son’s son)?

Answer:

Wasiyyat (a bequest) for a grandson is valid as long as he is not an heir who will inherit automatically on the death of his grandfather. A grandson will automatically inherit if his paternal grandfather had no living sons when he died. If the grandfather left behind a son, then the grandson will not inherit, hence the wasiyyat for him will be valid. The amount of the wasiyyat should not exceed one third the total value of the assets of the mayyit (deceased).

Question:

My mother directed in her will that the house which belonged to her and in which her children are living, should not be sold as long as all the children have not acquired their own homes. Is this condition permissible?

Answer:

This directive is not valid. The house belongs to all her shar’i heirs according to the Shariah. Any heir can sell his/her share. If the heirs agree to retain the house, then those who occupy it have to pay rent. The rent should be divided among the heirs in proportion to their inheritance shares.

Question:

A married, infertile woman became pregnant by the test-tube technique. The sperm of another man was used. Is the child legitimate? Will this child inherit in the husband’s estate? What does the Shariah say about the paternity of such a child?

Answer:

Morally the woman is guilty of zina, though not in terms of the Zaahiri Shariah. The husband who permitted this vile, immoral haraam act is a Dayyooth (immoral cuckold who puts up his wife for prostitution). Inspite of the gravity of the sin and evil, the child is legitimate since it was born to a woman in wedlock. The paternity of the child is established. He will bear the name of this Dayyooth. The child will inherit normally. It should be understood that the test-tube technique is not permissible even if the husband’s sperm is used. And, the ‘fatwas’ of modernist so-called ‘fiqh academies’ of Egypt and Saudi Arabia carry no substance in the Shariah.

Question:

A man told his heirs that he is making a gift of his car to one particular son. The car he said now belongs to the son. However, he never transferred the vehicle to the sonnor allowed him the use of it. The father continued using the vehicle and paying the costs for the repair, etc. The vehicle always remained in the father’s possession. Now that the father has passed away, what is the position of the car? Is it part of his estate or does it belong to the son?

Answer:

A gift (hibah) becomes complete and final only after possession is given. A gift is not valid only by a declaration of the owner, be it verbal or written. The item/property should be given to the one who has to accept it. Only then will he become the owner thereof. In the case mentioned here, the father had full control and say over the vehicle. The son had not taken possession of it and it was never put in his control. He could not sell the vehicle or do with it as he pleases. As such the gift is not valid. The vehicle belongs to the estate of the deceased.

Q. What should be done with the assets of a person who died leaving no heirs?

A. Such a person is termed Laawaarith. His/her estate should be distributed to the Fuqara (Muslim poor). If the Laa-waarith has such poor relatives who do not inherit, they enjoy a prior right to his/her assets. Noninheriting relatives are step-mothers, milk- relatives, step-children, wife’s relatives, etc.

Q. Is it permissible for a man to distribute all his wealth to his heirs during his lifetime?

A. While it is permissible for a man to distribute all his wealth to his children, etc. during his life time, the intention should not be to deprive any particular heir without valid Shar’i reason. If he distributes his wealth during his lifetime, he should give equally to both sons and daughters. If he has a valid reason for preferring one child, hence giving him/her more, then it will be permissible, e.g. the one child cares more for the parents or he is the only one who works with them.

Q. Is it permissible to distribute all of one’s wealth to charity?

A. It is not permissible to give all of one’s wealth to charity thereby depriving one’s heirs. Deprivation of heirs is a heinous sin, hence the Shariah has stipulated that a man may bequeath a maximum of one third of his assets to charity after his death.

Q. One of the daughter’s of the deceased became a murtad after the death of her father. Does she inherit?

A. A murtad does not inherit even if he/she was a Muslim at the time of the death of his/her father. He/she will be considered as being non-existent.

Q. A deceased lady’s surviving relatives are her brothers and sisters. How should her estate be distributed?

A. If the deceased lady has brothers and sisters and no parents, no husband and no children, her estate will be inherited by her brothers and sisters. Each brother will obtain twice the share of a sister.

Q. The deceased left 10 sons and 3 daughters. What is the Islamic distribution? Two sons have also died leaving wives and children.

A. The deceased was survived by ten sons and three daughters. If at the time of his death he had no other relatives but the sons and daughters, then his estate should be divided into 23 equal shares. Each son will receive two shares and each daughter, one share. Thereafter, each deceased son’s share should be divided amongst his heirs.

Q. A man has only one son, brothers and sisters. He has no wife and no parents. How should his estate be distributed to his heirs?

A. In the case concerned, the one son will inherit the whole estate of his father. The brothers and sisters of the deceased will not inherit anything. However, if this person wishes, he could make a wasiyyat for his brothers and sisters. The wasiyyat amount should not exceed one third the value of his assets.

Q. The deceased is survived by his wife, one daughter and two sisters. What are the shares?

A. The wife inherits one eighth of the whole estate; the daughter gets one half of the estate, and the remaining balance of three eighths will be shared equally by the two sisters of the deceased.

Q. The only surviving relatives of a female mayyit are 1 nephew and 4 nieces ( i.e. son and daughters of a full sister); 4 nephews and 3 nieces (sons and daughters a of Half-Brother, i.e. same father, different mothers). How should the estate be divided?

A. In this case the only persons who will inherit in the mayyit’s estate are the 4 Allaati nephews (the Allaati brothers’ sons). They are the Asabaat of the mayyit. The estate will be shared equally by them. (Allaati = Same father, different mothers).

Q. A daughter died before her father. She left behind two children. The father recently died and is survived by 2 sons and one daughter. His wife predeceased him. Do the deceased daughter’s two children inherit in their maternal grandfather’s estate?

A. When the father died, his only heirs were his two sons and one daughter, if he was not survived by any of his parents. The daughter who had passed away before her father did not inherit. Her two children too will not inherit in their maternal grandfather’s estate.

Q. The deceased is survived by three daughters and her husband. How should her estate be distributed?

A. Assuming that the deceased has no surviving parents, brothers, sisters, paternal uncles and nephews (sons of paternal uncles), the estate will be distributed as follows: Husband receives one quarter of the whole estate. The three daughters jointly receive the balance of three quarters which they have to share equally.

Q. A son dies before his father. Do his children inherit in their grandfather’s estate?

A. If the grandfather has sons, then his grandchildren will not inherit.

Q. I want to draw up an Islamic Will. However, due to ignorance my marriage is registered in community of property. A lawyer advised that I should apply for divorce. Thereafter I could enter into the antenuptial contract which excludes the accrual system. An Islamic Will, will then be valid. Will the court divorce have any effect on our Nikah? Please advise.

A.The court’s annulment of the community of property will have no effect whatsoever on the Nikah. The Nikah remains valid. What the lawyer advised is correct. It is best that the wife should sue for ‘divorce’. The husband should not defend the action. He should not appear in court. The registration will then be cancelled. Thereafter it is not necessary to contract the antenuptial contract. An Islamic Will is valid as long as there is no community of property. However, if you want to register, then be sure to select antenuptial contract which excludes the accrual clause.

Q. The deceased was a pious Muslim. He appointed a pious friend to be the executor of his estate to ensure that his assets will be distributed in accordance with the Shariah’s laws. Now some heirs want the executor to resign. They desire to appoint one of themselves, a female, to be the executor. Should he resign?

A.When a person has made someone the Wasi(executor) of his estate, he did so because of confidence in that person. The Wasi has an amaanat (trust) to discharge. It is not permissible for the Wasi to abandon the amaanat by abstaining from fulfilling the wasiyyat of the deceased. There must be a valid Shar’i reason for the Wasi withdrawing and refusing to execute the obligation with which he was entrusted. Furthermore, even if there is valid reason, he should not hand over the affairs of the estate to a woman. Rasulullah (sallallahu alayhi wasallam) prohibited the appointment of a female to a position of trust and leadership.

Q. The deceased had formed a trust. His heirs are therefore unable to take possession of their shares of the assets. However, it is possible to dissolve the trust, but the trustees refuse to do so. Are they in violation of the Shariah?

A. The trust mentioned by you has no validity in Islam. When a person dies, his heirs automatically become the owners of their respective shares in the estate of the deceased. It is haraam to contrive any scheme such as a trust, etc. to deprive or prevent the heirs from taking immediate possession of their Shar’i shares of inheritance. It is Waajib on the executors to dissolve the haraam trust and to finalize the distribution of the mayyit’s estate. If the executors/trustees refuse to dissolve the trust despite this being possible, they will be major violaters of the Shariah. Their sin is excessively grave for they are guilty of usurping and denying the heirs the rights which the Shariah has ordered for them. The Qur’aan warnas of the Fire of Jahannum for such violaters of the Shariah.

Q. A father invested in stocks for his son when he was young and then gave it to his son. The son never dealt in stocks. He received it as a gift. Can he sell the stocks and use the money?

A. These stocks are haraam. He should give the money to the poor and not use it for himself. The stocks are in the category of riba (interest).

Q. The pension fund paid out a large sum of money to the estate of the deceased. How should this money be divided among the heirs?

A. If the pension fund was a compulsory one, not a voluntary one, then the entire amount received will be the property of the deceased and subject to the law of Inheritance. If the pension fund was a voluntary one in which the worker had entered of his own free will, then only the amount which he had actually paid towards the fund will be his property. The excess will be riba which has to be given to charity without niyyat of thawaab.

Q. What is the position if a house was bought with only haraam money – proceeds of gambling and interest? Do the heirs inherit such a house?

A. If the house was bought with only riba or any other haraam money, then it is not permissible to live in such a house. It is Waajib to give this house in Sadqah to the poor, or it may be sold and the money compulsorily given to the poor. The heirs do not inherit this haraam house.

Q. In a pension scheme, only the employer pays the monthly fee. The employee is not involved in the agreement. The company pays the money after the death of the employee to his heirs. What is the Shariah’s law in this regard?

A. If only the employer pays towards the fund, and no deductions are made f rom the employee’s wages, the amount given to the heirs of the deceased after the death of the person, will belong to the heirs in equal shares. It will not form part of the estate of the deceased. However, if the money was given to the person before his death, then it will form part of his estate.

Q. The children wish to give their shares of inheritance to their mother. How should this be effected?

A. The only way in which the children can give their assets to their mother, is after the finalization of the distribution and taking possession of their respective shares. Then only will it be valid for them to give their shares to their mother. This will not be permissible nor valid if done prior to finalization of the distribution.

Q. Does an illegitimate child inherit in his father’s estate?

A. The illegitimate child will not inherit in the estate of his biological father. He inherits only in his mother’s estate.

Q. Is it permissible for a man to make a wasiyyat of property/cash for his grand children?

A. It is permissible for a person to make a wasiyyat (bequest) for his non-inheriting grandchildren. The amount of the wasiyyat must not exceed one third the total value of his assets.

Q. A man made a gift of a property to his eldest son during his lifetime. He has died and left two properties and three sons. Does the eldest son get a share in the two properties?

A. The eldest son will inherit in the two properties and in all the other assets of his father regardless of the gift which his father had made to him (the eldest son) during his lifetime. He will inherit in equal shares with his other brothers in the two pieces of land.

Q. During his lifetime a man made a gift of a house to one of his wives. The house was transferred into her names as well while he was alive. The husband has passed away. He has left one other house. Does the wife who was given a house inherit in this house?

A. Yes, she will inherit jointly with the other wife in all the assets left by the deceased husband. Whatever belonged to the husband on the day of his death will be inherited by the heirs. The two wives will jointly inherit one eighth of the assets of the deceased. They will share this one eighth equally. If the husband had unjustly favoured her with the house during his life time, he will answer for the injustice by Allah Ta’ala. But, his injustice does not affect her right of inheritance.

Q. A dispute has developed in a family regarding inheritance. The one party has instituted legal action to have the deceased’s Islamic Will cancelled, and that he be declared to have died intestate. A Mufti is supporting this application. He has also become one of the applicants to support this court application. Although the applicant party is privately claiming that the respondent has misappropriated assets of the deceased, this issue is not raised in the application. The application is only to have the Islamic Will cancelled and to have the deceased declared intestate. The applicants are claiming that the deceased was mentally unstable at the time he had signed the Islamic Will. What is the ruling of our Shariah regarding this matter, especially the Mufti supporting this kind of court action?

A. It is palpably the clear that the Mufti had erred grievously by agreeing to be among the applicants who had applied to the kaafir court for implementation of Sareeh Kufr (pure, unadulterated kufr) – such kufr which undoubtedly, expels a person from the fold of Islam. Perhaps the gullible Mufti was not aware of the najaasat and kufr in which he was entrapped by the applicants. However, there is no justification for him, after realizing the horrible kufr mess, to remain on board the kufr trip to Jahannum. It is incumbent for him to withdraw from this kufr application. Even if we have to momentarily assume that assets had been usurped as the applicants are alleging, but not in the court papers, then too, there is no justification for going to the kaafir court, and even worse, no justification for applying for a kufr decree to cancel the Law of Allah Azza Wa Jal. If the issue was usurpation of the deceased’s assets, the application should have concerned such assets, and not target the Shariah by applying for two decrees of kufr: (1) A decree to cancel Allah’s Law pertaining to inheritance, that is the Islamic Will. (2) A decree for confirming the kufr law of succession by having the deceased declared intestate. Even if it is assumed that your grandfather (the deceased) was mentally unfit to sign the Islamic Will, it is completely irrelevant because an Islamic Will is Allah’s decree. It does not require documentary evidence for its validity nor does the person have to be sane. The Shariah’s law of inheritance automatically applies to the estate of the deceased. Nothing may set it aside. The gravity of this offence is of exceptional proportion and it cannot be viewed lightly since it obliterates the very Imaan of the applicants. May Allah Ta’ala guide the miscreant applicants, and may they be bestowed with the taufeeq to repent and renew their Imaan.

Q. The heirs of my marhoom father are his wife, one son and six daughters. One daughter died after our father. In the estate there is a house. The son together with his niece managed to transfer the house into his name without the knowledge and consent of the other heirs. Then he renovated the house. He now wants to pay out the other heirs. He says that the figure of calculation will be the municipal value which is R445,000. However, the market value is more than twice the municipal valuation. Did the son have the right to transfer the house into his name without the approval of the other heirs? What is the Shariah’s position regarding the renovation which he effected without the consent of the heirs? Does he have the right to impose the municipal value on the heirs? Is it his right to sell the house without the consent of the other heirs?

A. The son committed an act of fraud by transferring the house into his name. The niece is criminally responsible for aiding and abetting her uncle in the perpetration of this heinous act of haraam. The son had no right to renovate the house without the consent of all the heirs. The house belongs to all the heirs. He may not claim renovation expenses from the heirs. The municipal value has no significance in the Shariah nor is it valid. The current market value is the correct value if the heirs agree to sell the house to him. Alternatively, the heirs could come to an agreement on a value which is mutually acceptable. If an agreement cannot be reached, then the current market value will be binding. The son can sell only his share. Each heir is allowed to sell only his/ her share. An heir cannot sell or buy another heir’s share without his/her happy consent. If the mother or any other heirs wish to sell their respective shares, they have to offer it first to a partner in the house. None of the heirs has the right to sell the whole house. He/she may sell only his/her own share. The whole house may be sold only with the agreement of all the heirs.

Q. Does a girl inherit in the estate of her step-father?

A. A step-daughter is not a man’s heir. She does not automatically inherit in his estate. However, a person may make a wasiyyat (bequest) for a nonheir. The bequest amount may not be more than one third of the value of all his assets.

Q. In the deceased’s estate are cars, furniture, clothes and a variety of items. How should these assets be divided?

A. If the heirs wish, they may sell the cars and any or all of the other assets, and divide the cash in terms of their respective shares. Or, any heir may purchase any asset and pay the amount into the estate. This amount will be divided among the heirs as explained. Another method of distributing all the assets is to give each asset a fair market value. Then add up all these values. The grand total should then be divided among the heirs as explained above. For example, if the combined value of all the assets is R160,000, then the wife’s share is R20,000; the daughter’s share will be R15,555, and each son’s share will be R31,110. Thus, each heir owns his/her respective amount of the assets. Now they will have to behave like intelligent Muslims because there will be a measure of give and take. They should mutually and amicably split the assets amongst themselves, each one receiving assets to the value of his/her share. It will be honourable, for the children to allow their mother to first make a selection and take whatever she wishes for the amount of R20,000. Then they should allow the daughter to take assets for R15,555. The balance should then be equally divided by the four sons without any dispute.

Q. Can the personal clothing worn by a deceased be given to charity?

A. No, it may not be given to charity. His clothes also form part of his estate which is the property of his heirs. After distribution of the assets to the rightful heirs, the clothes may be given to charity by those who have received the garments as part of their shares of inheritance. Alternatively, one or more heirs may purchase the clothes at a fair price. The money will go into the estate while the clothing which have been bought may be given to charity.

Q. There is a large sum of dollars in the mayyit’s estate. How should these dollars be divided? What rate should be considered?

A. The actual dollars should be divided in proportion to the shares mentioned. Alternatively, the dollars should be exchanged for rands, and the rands divided. The rate is of no consequence. Either divide the physical dollars or sell the dollars and divide the rands.

Q. I have heard that if a person kills someone, he (the killer) will not inherit in his estate even if he is an heir. Does this rule apply to only intentional killing (murder)?

A. It applies regardless of the intention. Even if the killing is a pure, unavoidable accident, then too the one responsible for the death, will not inherit in the deceased’s estate even if he is a son or a father of the killed person.

Q. When a son predeceases his father, do his children inherit in their grandfather’s estate?

A. When a child predeceases his parents, then for purposes of inheritance, he is non-existent. His children will not automatically inherit in their grandfather’s estate. However, if the grandfather wishes, he may make a wasiyyat (bequest) for them. The total amount of the wasiyyat may not exceed one third the total value of his assets.

Q. A property was previously usurped by the apartheid authorities. One of the heirs (Mr.A) took up the matter with the new ANC government and was successful in getting the land back. Before this happened Mr.A. had asked Mr.B (another heir) if he (B) was interested in getting the property back. B was not interested. However, now, years later when the property has been returned, Mr.B changed his mind and wants his share in the property. Is A correct to refuse giving B his share? Can heirs change their minds and demand their shares after having initially abandoned their rights?

A. All the heirs have their Shar’i right of inheritance in the usurped property which has been returned regardless of the fact that only ‘A’ had made the effort to secure the return of the asset. ‘B’s initial disinterest and abandonment of his right have no validity. His ownership is established in the property by way of Inheritance. The statement of an heir before having taken possession of his/her share, has no validity. Hence, if before distribution and possession of their respective shares, the heirs say that they don’t want anything in the property or they give their shares to another heir or non-heir, such statements will have no validity. They will remain heirs and have their rights in the assets of the deceased. Mr.A. has no right of refusing to give Mr.B and all other heirs their Shar’i shares. As long as the heirs have not taken possession of their shares, their rights will remain confirmed in the property. If any heir refuses to accept his share, then if possible, his share of the assets should be physically delivered to his house and placed in front of his door, but not in the street. If he refuses to accept his share in a fixed property, then his share of the rent should be held in trust. After some time he, himself or after him, his heirs will claim and accept it.

Q. A man specifies in his will that his property ‘A’ should be for his son Zaid, and property B for his son Amr. At the time of distribution of the assets, the values of the properties must be taken into account to ensure that both sons obtain their equal shares according to the Shariah. If the one property has a greater value, then the son who gets this property should pay the excess to the other son. Is this will valid in the Shariah? His reason for this is to save the sons from fighting over the properties.

A. The manner in which the man desires his estate to be distributed after his demise is not permissible. He may not stipulate such conditions. When a man dies, every heir has his/her proportionate share in every asset of the estate. The man may not set out that a certain asset will be for a certain heir and another asset for another heir. Regardless of his intention, he has no right to exercise control from his grave over what was once upon a time his property. When a man dies, his temporary ownership is immediately extinguished, and the ownership of the heirs is automatically established. The father may only give the children naseehat and warn them of Allah’s Athaab. His only obligation is to leave an Islamic Will, and appoint pious executors who will ensure that his estate is distributed in terms of the Shariah.

Q. My parents are non-Muslim. My father has left in his will a substantial sum of money for me. Does the Shariah permit me to accept this money?

A. Although there are no ties of inheritance between Muslims and non-Muslims, bequests are valid. You may accept the money your father has left for you.

Q. Is it compulsory to execute a deceased’s estate in a secular court?

A. In fact, it is haraam to proceed to a secular court to wind up and finalize the deceased’s estate. The estate should be wound up in accordance with the Shariah. The assistance of the Ulama should be sought in any Shar’i matter.

Q. How should the estate of a missing person be distributed.

A. A person whose whereabouts are unknown and it is not known whether he/she is dead or alive is called Mafqood. l. The mafqood is considered to be alive with regard to his estate. Thus, his estate will not be distributed among his heirs by way of inheritance as long as his death is not confirmed or decreed by a Shar’i court. 2. The Mafqood’s death will be confirmed by way of reliable information. If no such information is forthcoming, his death will be decreed by a Shar’i court (or a Shar’i committee in the absence of a court) when his age has reached 90 Islamic years. 3. At the age of 90 years when he will be legally decreed to be dead, his estate will be distributed by way of inheritance among his existing heirs. Only the heirs who are alive on the date the mafqood becomes 90, will inherit. Those who had died before this date, will not inherit in the Mafqood’s estate. 4. With regard to the estates of others, the Mafqood is considered to be dead. In other words he does not inherit in the estates of such deceased persons whose heir he would have been if his whereabouts were known on the occasion of their deaths. However, inspite of him not inheriting, his share will be set aside and held in trust because of the possibility of his return before he has reached 90 years. When the Mafqood’s death is pronounced at 90, the assets which were held in trust for him have to be distributed to the heirs who were alive on the occasion of the death of the person from whose estate the share was set aside for the Mafqood. At the age of 90 it will be deemed that the Mafqood was not alive on the occasion of the death of his murith (the deceased from whom one inherits). Example: Amar went missing on 20th Safar 1350. On this day he was 35 years old. Ten years later his wife died leaving the following heirs: Mother, daughter and son. Her estate will be divided as follows: Mother 1/6; Mafqood husband 1/4 (to be held in trust); Balance to be divided into 3 parts. One part for the daughter and two parts for the son. Mother 1/6 = 2/12; Mafqood husband 1/4 = 3/12; Balance 7/12 to be divided into 3 shares (2 for son and 1 for daughter). The 3/12 or 1/4 of the estate will be held in trust. Should the Mafqood return before the age of 90, his share will be given to him. If he has not returned by 19th Safar 1405 when his age will be 90, the 3/12 will be returned to the heirs of his deceased wife. i.e. those heirs who have inherited from her when she had died. They were her mother, daughter and son. The mother’s share is 1/6 and the balance of 5/6 will be divided into 3 parts. The son will receive 2 parts and the daughter one part. This division will be illustrated with a further example. The value of the deceased wife’s estate is R144,000. The shares of heirs are: Mother 2/12 (1/6)= R24,000 Mafqood 3/12 (1/4) = R36,000 Balance 7/12 (for son and daughter) = R84,000 R144,000 The mafqood husband’s share of R36,000 will be kept in trust until he reaches the age of 90 years. If he has not returned by this time, the R36,000 which was set aside for him will revert to his deceased wife’s estate. Her heirs on the occasion of her death were her mother, son and daughter. The division of the R36,000 will be as follows: Mother 1/6 = R6,000 The balance, viz; 5/6 = R30,000 will be divided into 3 parts. Thus each part is R10,000. The son receives R20,000 and the daughter R10,000.