Fatwa #445478 April 2020United Kingdom
Wasiyyah for Inheritors
Question
Inheritance Query
Assalamwalaykum,
A father has three sons and one daughter. Whilst the father is still alive can he make a verbal, or written wasiyah, that upon his death, all of the money that he leaves behind should be distributed equally between the four siblings (the 3 sons and 1 daughter) ?.
Would this be in line with sharia rules pertaining to inheritance, bearing in mind that the four siblings would be classed as inheritors.
Jazakallah khair
Answer
In the Name of Allah, the Most Gracious, the Most Merciful.
As-salāmu ‘alaykum wa-rahmatullāhi wa-barakātuh.
In principle, it is not permissible to make Wasiyyah (bequest) for a Waarith (inheritor). Consider the following Hadith:
عَنْ شُرَحْبِيلَ بْنِ مُسْلِمٍ، سَمِعْتُ أَبَا أُمَامَةَ، سَمِعْتُ رَسُولَ اللَّهِ صلى الله عليه وسلم يَقُولُ " إِنَّ اللَّهَ قَدْ أَعْطَى كُلَّ ذِي حَقٍّ حَقَّهُ فَلاَ وَصِيَّةَ لِوَارِثٍ " (سنن ابي داود-2870)
Abu Hurayrah narrates: I heard the Messenger of Allah (Sallallahu Alayhi Wasallam) say: Allah has appointed for everyone who has a right what is due to him, and no bequest must be made to an heir. (Abu Dawud-2870)
Therefore, it will not be permissible for the father to make the Wasiyyah in reference.
Wasiyyah may only be made for non-heirs and cannot exceed one-third (1/3) of the estate after debts and funeral expenses have been settled. Thereafter, all assets form part of the net estate and will have to be distributed amongst the heirs according to the Islamic Law of Succession and Inheritance.
However, it is permissible for one to gift his property or wealth to his children in his lifetime. Therefore, if the father gifts his wealth to his children before he passes away, then that will be permissible.
And Allah Ta’āla Knows Best
Mudassir Benish
Student Darul Iftaa
Houston, TX, U.S.A
Checked and Approved by,
Mufti Ebrahim Desai.