Wasiyyah

my father had 3 sons and one daughter and a wife. he passed away leaving all the five survivors, in 1998.
in 1988 he executed a will bequeathing 1/3 of his property to the son and daughter of my eldest brother in 1988. the kids were minor at the time and the will named their mother as the guardian and the administrator of the will. the will was handed over to the maternal uncle of the kids with the instruction to deliver the will to the mother of the kids, on the death of my father.
 
In 2003 my brother broached the matter of partition of the property, and declared that he has this will. But research shows that if the will is to benefit one heir at the cost of all the other heirs, it is not acceptable even if it is only 1/3 of the property.
 
My elder brother is a doctor and his wife is also a doctor. And earn enough money. They do not fit the definition of the needy.
The other heirs are not professionals and strive to survive.
in view of the ayaths 180 to 182, of surah 2, is this will implementable, and valid.
the interpretation of these ayaths say that if there is partiality or inclination towards one heir and the aim and goal of the will is to benefit one heir indirectly, it should not be accepted.
 
 
“Janafan (mayil hona) ka matlab hai ghaltee ya bhool se kisi ek rishtedaar ki taraf zyada maail hokar doosron ki haq talfee kare, aur isman se muraad hai jaan boojh kar aisa kare. Ya “isman” se muraad gunah ki wasiyyat hai.
Iska badalnaa aur ispar
amal na karna zaroori hai.
Isse maaloom hua ke wasiyyat mein adl-o-insaaf ka ehtemaam zaroori hai. Warna, dunyaa se jaate jaate bhi zulm ka irtekaab uske ukhrawi najaat ke nukhta-e-nazar se sakht khatarnaak hai.”
 
 
(But he who fears from a testator some unjust act or wrongdoing,)
Ibn `Abbas, Abu Al-`Aliyah, Mujahid, Ad-Dahhak, Ar-Rabi` bin Anas and As-Suddi said, “Error.” These errors include such cases as when the inheritor indirectly acquires more than his fair share, such as by being allocated that a certain item mentioned in the legacy be sold to him.
Or, the testator might include his daughter’s son in the legacy to increase his daughter’s share in the inheritance, and so forth.
these interpretations go show and prove that the 1/3 is not
unconditional, and cannot be used to deprive other heirs in the disguise of a will.

In the name of Allah, the most Beneficent, the most Merciful.

Answer

Literally wasiyyah means an order to do something, either in the lifetime of the maker of the wasiyyah or after his death.  But in commonly accepted usage, it refers to what must be done after death.  It can be translated as the Will or bequest.

According to the consensus of the Muslim Ummah it is not obligatory on the dying person to necessarily make a Will in favour of relatives who have no defined shares in the inheritance.  The obligatory character of a wasiyyah in their favour is abrogated. The making of a Will in favour of such relatives is only a desired (mustuhab) act.

Furthermore, it is not permissible to make a Will for an inheritor.

It is narrated by Saaiduna Ibn Abbas Radiallahu Anhu that the Prophet of Allah Sallallahu Alahi Wasalam has said, “Allah has Himself given everyone, who has a right, his right.  So there is no will for any inheritor.”  (Sunan Tirmizi)

The reason being is that Allah (SWA) has Himself fixed the shares of the inheritors; therefore the executor need not make a Will.

From the aforementioned discussion, we can deduce that making a Will to cover relatives whose shares have been fixed by the Holy Quran is not permissible without the permission of other inheritors.  Relatives who do not hold a legal share in the inheritance can be bequeathed up to one third of the total.  (Maariful Quran p.450-p.452 v.1)

With regards to your question, it will be permissible for your father to bequeath up to one third of his property to his grandchildren and to make their mother the wasi or executor of it (as long as she is pious and aware of the laws and rulings of wasiyyahy).  (Kifayatul Mufti p.410 v.8 & Aapke Masaail p.393 v.6)

According to the laws of inheritance, the grandchildren are not entitled (mahjuub) to receive anything from the inheritance because of the sons of the deceased will be an asabah.  Therefore, the wasiyyah to the grandchildren will be correct.

Regarding the points you mentioned in the question, even though the person one is making the Will for is rich, it is still valid.  (Fatawa Hindiyyah p.90 v.6)

Furthermore, in this scenario the children are being made the owner (malik) of the inheritance and if the children want to include their parents into the inheritance it will be permissible under the term of tabdeel milk (change of ownership)

If the father commissioned the wasiyyah with the intention of indirectly decreasing the shares for the rest of the heirs then this will be an impermissible act of disobedience however, the wasiyyah will still be executed. (Tafsir Ibn Kathir p.231 v.1)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham