Fatwa: # 46121
Category: Inheritance (Irth)
Country:
Date: 4th October 2020

Title

Inheritance Query

Question

Assalamualaikum! I am very pleased for the wonderful services your website is rendering to the ummah. Jazakallah Khair. We have a complex situation involving inheritance of a large portion of property left. We want to make sure that we do justice, do not deprive anyone from their share.

1. Grandfather’s sister died recently. She had only one sibling which is my grandfather. Her father-My great grandfather had purchased land and gifted to her, she build a house on a portion of it and used partially for staying, rented remaining apartments for her ongoing income. During her lifetime, she donated nearly 60% of her undeveloped land to a masjid.

2.She did not have any children. She was deserted by her husband who went to USA and got married and had children with his new wife and few years later he died. She was not in touch with her deceased husband or his family for more than 40 years. Do we have to find out where her deceased husband’s family or children are, do they qualify for any of her inheritance?

3.Before her death in last few years, she had talked about gifting some property to a lady friend cum companion and also to a madrasa as well as a third person who she used to consult for spiritual matters. There wasn’t any will signed, no formal witnesses, just verbal statements at different occasions to 1-2 different people, never 2 males or 1 male with 2 females together as is often the requirement for witnesses in shariah. Do we honor these claims based on verbal statements without proper witnesses.

4.Her only sibling was my Grandfather who died before her. Do her nephews/nieces which is my grandfather’s children qualify for her inheritance in the absence of my grandfather. If so, what percentage of her property. If they don’t qualify because my grandfather died during her life, what do we do with the property-donate to third party/charity?

5.If her nephew and nieces qualify for inheritance, the questions is how do we distribute it. My grandfather had 4 children( my Father, Uncle and 2 aunts) with one wife and 2 children from second wife. The second wife and her children separated nearly 50 years ago and moved to Canada or USA, never been in contact for more than 50 years. Do we have to locate or count them in for inheritance?

6.One easy way that some have proposed is to just donate the property for madrasa or masjid and leave it to Allah swt to compensate for whoever didn’t get their share.

Answer

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

As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.

1.     Her donation to the Masjid was valid.

2.     The children of her husband from his second wife will not inherit from her. Hence, you are not required to track them.

3.     In principle, a bequest will be valid and binding (from one third of the estate) provided it was uttered in precise words which are understood to refer to a bequest.[1] It is not necessary to verbalize or write down a bequest in the presence of witnesses.[2]

Therefore, provided she had uttered clear words reflecting her intent of a bequest to the lady companion, madrassa etc., the bequest must be carried out (from one third of her estate). The testimony of witnesses is not required.  

However, an individual claiming to be a beneficiary of the bequest will have to bring forth two witnesses (two men or one man and two women) to substantiate his/her claim.[3] The witnesses must fulfill the Shar’i criteria and rules of Shahadah (Islamic testimony) for the Shahadah to be valid.

4 & 5. It is necessary to track your grandfather’s children from his second wife. Shares cannot be rightfully allocated before procuring this information.

It is the duty of the executor of her will to track these heirs. You may revert to us with more detail at admin@daruliftaa.net Ref: Bilal Pandor

6. Inheritance laws are divinely prescribed, as such, one must be very cautious when dealing with inheritance. Each deserving heir must be allocated his/her share. This is the command of Almighty Allah.

 

And Allah Ta’āla Knows Best

Bilal Yusuf Pandor

Student Darul Iftaa

Lusaka, Zambia

Checked and Approved by,
Mufti Ebrahim Desai

 


البحر الرائق شرح كنز الدقائق ومنحة الخالق وتكملة الطوري (8/ 460) [1]

 وأما ركنها فقوله أوصيت بكذا، وأما صفتها فقد ذكرها المؤلف، وأما حكمها فالموصى له يملك المال بالقبض، وأما سبب مشروعيتها فقوله تعالى {من بعد وصية يوصى بها أو دين} [النساء: 12]

 

الفتاوى الهندية (48/ 12)

( كتاب الوصايا ) ( وفيه عشرة أبواب ) ( الباب الأول في تفسيرها وشرط جوازها وحكمها ومن تجوز له الوصية ومن لا تجوز وما يكون رجوعا عنها ) الإيصاء في الشرع تمليك مضاف إلى ما بعد الموت يعني بطريق التبرع سواء كان عينا أو منفعة ، كذا في التبيين أما ركنها فقوله أوصيت بكذا لفلان وأوصيت إلى فلان ، كذا في محيط السرخسي

 

فتاوی دار العلوم زکريا- ج:8 ص:764  [2]

 

الفقه الإسلامي وأدلته للزحيلي (10/ 7571 [3]

وتثبت الوصية بطرق الإثبات الشرعية كالشهادة والكتابة

فتاوی حقانيہ-ج:6 ص:504

سوال- ایک آدمی نے یہ دعوی کیا کہ فلاں شخص نے میرے لئے اتنے مال کی وصیت کی ہے، جب کہ مرحوم کے ورثاء اس وصیت کے منکر ہیں مگر مدعی کے پاس گواہ موجود ہیں، تو کیا شرعا ورثاء کا انکار مرحوم کی وصیت کو ختم کر سکتا ہے یا نہیں؟

الجواب: جس طرح دیگر معاملات اور عقود کے اثبات کے لئے گواہوں کی گواہی موجب اثبات ہے، بالکل اسی طرح وصیت بھی گواہوں کی گواہی سے ثابت ہو جائے گی اور اس سے ورثاء کے انکار کی شرعا کوئ حیثیت نہیں رہے گی۔

 

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