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Will Query

Answered according to Hanafi Fiqh by Deenspire.com

Question(s)

I am enquiring with regards to my dad’s property where we all grew up.
We are 3 sisters and 2 brothers. 1 brother has recently passed away. He used to live with my parents, his wife and children. My dad passed away nearly 9 years ago, my mum passed away just over 2 months ago. My brother has left a will, which a hand written letter saying that my dad had left the house to him. It also states that another house which my younger brother lives in which was owned by parents too, is left for my younger brother. Now for us 3 sister’s it says that me and 1 of my sister’s we were given our haq when we went for haj, which we don’t have any knowledge of, we were given a hadiya from my parents at the time we were going to haj. 1 went for haj In 2001, I was given a hadiya, I don’t remember how much it was, but I wasn’t told that this was part of my haq. Now my other sister went for haj in 2006, she was given £1,000 as a hadiya but she wasn’t told it was her haq either. Its written in the will that my youngest will get her haq. None of my siblings who are alive have any knowledge of my parents giving us our haq. And also for my brother I would like to ask, the house my deceased brother lived in with my parents is worth £190000 and the property that the younger brother lives in is worth £100,000. Please can you explain what this means, we will accept it how it is islam.

Answer(s)

الجواب حامدا ومصليا ومسلما

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

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

Before we address a few specific noteworthy points with regards to the will, we enclose some general guidelines in relation to inheritance and wills:
In principle, once an individual passes away, the wealth left behind by the deceased will first be used in fulfilling the necessary funeral and burial costs, and then towards clearing all (if any) debts. Thereafter, a maximum of 1/3 of the remaining wealth will be used to fulfil any permissible waṣāyā (bequests) of the deceased. The remaining 2/3 will then be distributed as inheritance to all those family members who are entitled to a share in the inheritance, as stipulated by Sharī’ah. [1]

With regards to the will and related-queries, there are a few noteworthy points that must be understood:
1. It is not sufficient for the deceased brother to merely stipulate in his will that the father gave him the property nor that he gave another property to his younger brother, without sufficient evidence for his claim. Accordingly, in the absence of reliable witnesses who witnessed your father doing so, this will not be considered and the shares of the properties must be distributed between the inheritors, according to the Laws of Shari’ah. [2]
2. It is also suggested that the sisters were given wealth during the parent’s lifetime. If indeed they were given some wealth, this will merely be regarded as a gift (hibah) and will not be regarded as their share of inheritance. An individual’s inheritance is only distributed amongst his/her heirs, after death. [3]

And Allah Ta’āla Knows Best.
Mubasshir Talha
6 Jumādā al-‘Aakhir / 19 January 2021

Concurred by:

Approved by:
Mufti Tahir Wadee | Mufti Yusuf Ilolvi
[To see their profiles, click here]

Note: This fatwa is only to be viewed with the question asked. In the event of presenting this to a third party, please ensure it is coupled with the original question, as well as the references below for Islamic Scholars.


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[References]

[1]
أول ما يبدأ من تركة الميت تجهيزه وتكفينه بما يحتاج إليه ودفنه، ثم قضاء ديونه الأولى فالأولى، ثم تنفيذ وصاياه من ثلث ما بقي بعد الدين والكفن، ثم قسمة الباقي بين ورثته على فرائض الله تعالى
[Al-Fatawa al-Sirājiyyah, 577, DKI]

يبدأ بتكفينه وتجهيزه من غير تبذير ولا تقصير، ثم تقضى ديونه من جميع ما بقي من ماله، ثم تنفذ وصاياه من ثلث ما بقي بعد الدين، ثم يقسم الباقي بين ورثته بالكتاب والسنة وإجماع الأمة
[Al-Sirāji fil Mirāth, 5-8, Maktabah Al-Bushra]

[2]
فريضة من الله
[Surah al-Nisa’, ‘Ayah 11]

من فر من ميراث وارثه قطع الله ميراثه من الجنة يوم القيامة
[Sunan Ibn Mājah, 2703]

الفرائض، جمع فريضة من الفرض بمعنى التقدير، والمراد: السهام المقدرة في كتاب الله في المواريث
[Lam’at al-Tanqih, 5/695, Dar al-Nawādir]

[3]
زندگی میں جو کچھ اپنی اولاد اور بیوی کو دےگا وہ میراث یا میراث کا بدل نہیں، بلکہ عطیہ ہے، جس بیٹے کو دے دےگا اور اس کا قبضه کرا دےگا وہ مالک ہو جائےگا
[Fatāwa Mahmūdiyyah, 20/278, Jamia’ Farūqiyyah]

زندگی میں وراثت کا تقسیم کرنا – زندگی میں وراثت کی تقسیم نہیں ہوتی بلکہ یہ ہبہ ہے
[Ahsanul Fatāwa, 3/310, HM Saeed]

 باپ اگر اپنی زندگی میں اپنی جائیداد اولاد میں تقسیم کرتا ہے تو یہ شرعا میراث نہیں، بلکہ ہبہ ہے
[Mahmood al-Fatāwa (Mufti Ahmed Khanpuri), 6/206]

This question was collected from Deenspire.com, which is headed by Mufti Mubasshir Ahmed. He completed his Qur’an Hifz and ‘Alimiyyah in Lancashire and then studied formal Ifta’ syllabus under senior Muftis of the UK. He received his Ifta’ Ijazah from various scholars including Mufti Yusuf Ilolvi Sahib of Gujarat, India and Mufti Tahir Wadee of UK.

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