Wasiyyah given to a heir

Answered according to Hanafi Fiqh by DarulIftaBirmingham

My grandfather passed away and he left behind his property and estate for my step grandmother (his second wife). He did not include his children, brothers and sisters. Is such a will valid?

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.

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)

However, if your grandfather was to gift the estate or property to his second wife before he passed away then that will be permissible. If the father commissioned the wasiyyah with the intention of indirectly decreasing the shares for the rest of the heirs then this will be impermissible an act of disobedience, however, the wasiyyah will still be executed. (Tafsir Ibn Kathir p.231 v.1)

It should be borne in my mind that to deprive someone of his or her share of the inheritance is a grave sin and one will be punished in the hereafter.

In a hadith the Prophet of Allah Sallallahu Alahi Wasalam had said, “If anyone flees (plans devises to avoid the payment of) the inheritance, Allah will forfeit his inheritance of paradise on the Day of Judgement.” (Sunan Ibn Majah)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham

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