Saturday | 10 December 2022 | 15 Jamadiul-Awal 1444
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Fatwa Answer

Question ID: 1400 Category: Dealings and Transactions
Inheritance

Asslamoalaikum,

My father had 4 sisters and 1 brother. My father was 2nd eldest in the family. My uncle is the youngest. 3 of the 4 sisters got married but left claim for anu property share in my grandfather ancestral property. Now the property should have been divided between the eldest sister and 2 brother. But nothing was done on paper and all was accepted on terms. Later when the eldest sister wrote a will declaring my father as the legal hier of her share.  She has passed away, my father also passed recently. Now my uncle says that he also has the share in my aunt's (eldest sister) property and is moving to court and he reject the will written by my aunt. May I know what is the islamic jurisdictions of such issues.

Jazakallah

 

 

 

 بسم اللہ الرحمن الرحیم

الجواب وباللہ التوفیق

It is unlawful for an heir to relinquish his/her “shar’ei” share before division of inheritance. 

Note that after the inheritance has been divided and the heirs have acquired their shares, only then if one of them voluntarily gives his/her share to someone else, it will be valid according to "Shari'ah" rules.

Relinquishment by the sisters of their rightful shares before the division of inheritance is invalid according to “Shari'ah". It is also invalid to make a WILL before the inheritance has been divided. Accordingly, WILL of the elder sister is also invalid.

Therefore, according to the "Shari'ah" ruling, the property of the late grandfather should be divided among the four (4) sisters, your father and your uncle. All of them should be given possession of their shares, and only after that if a sister wants to voluntarily give her share to someone, she can give it.

As for the issue of the WILL of the elder sister:

a. If the elder sister is unmarried or married but does not have any male children, then her property will be divided between your father, uncle, and the sisters. Also in this case, the WILL of the elder sister in her father’s favor will be considered void, and your uncle’s demand of his right will be considered legitimate.

b. But if the sister has male children, then the WILL of the sister will be valid, and your father will be entitled to your sister's inheritance. 

But remember that the WILL will be enforced only on one-third of the total inheritance property, not more than one-third.

Note: The form of the WILL is not clear so you need to attach copy of the WILL and the details of all the living and dead heirs and their descendants, for us to allocate each one's share of inheritance. 

لَوْ قَالَ الْوَارِثُ: تَرَكْتُ حَقِّي لَمْ يَبْطُلْ حَقُّهُ؛ إذْ الْمِلْكُتَرَكْتُ حَقِّي لَمْ يَبْطُلْ حَقُّهُ

یقبله لَوْ قَالَ الْوَارِثُ: تَرَكْتُ حَقِّي لَمْ يَبْطُلْ حَقُّهُ؛ إذْ الْمِلْكُ لَايَبْطُلُ بِالتَّرْك   (ص:۳۰۹، ما یقبل الإسقاط من الحقوق وما لا

۔تکملہ رد المحتار، مطلب: فی حادثۃ الفتاویٰ،۱۱/۶۷۸) 

إِنَّ اللَّهَ قَدْ أَعْطَى كُلَّ ذِى حَقٍّ حَقَّهُ فَلاَ وَصِيَّةَ لِوَارِثٍ (سنن ترمذی:  کتاب الوصایا،۲۲۶۶)

قال علیہ السلام: إن اللّٰہ تصدق علیکم عند وفاتکم بثلث أموالکم زیادۃ لکم في أعمالکم۔ (سنن ابن ماجۃ ۱۹۴) ثم تنفذ وصایاہ من ثلث ما بقی بعد الدین۔ (السراجي في المیراث ۴)

فقط واللہ اعلم بالصواب