Assalaamu alaykum warahmatullahi wabarakatuhu.
I pray you are well.
I have a few questions relating to death and inheritance.
1. If a man has 4 daughters, a wife and a sister, are they all inheritors? Would the sister be asbat?
2. If a woman has a husband, 5 daughters and a brother, are they all inheritors? Would the brother be asbat?
3. is a person allowed to state that the money they give in their lifetime MUST be used for a particular purpose? EG, this £100 is to be only used for your wedding or £300 to go towards umrah etc. Chances are those things may never happen.
4. If a will is made and is contrary to Islam, is it permissible to revoke the wishes of the deceased?
5, if the deceases has missed many salah in their lifetime, would it be incumbent on the heirs to pay this off? How would they go about doing this?
May Allah reward you for your efforts in answering and continue to use you all for the khidmah of deen
Shukran
Wassalaam
1. All relatives mentioned will inherit. The wife will be entitled to 1/8. The daughters 2/3 between them and the sister will be ‘asabah and inherit the remaining.
2. All relatives mentioned will inherit. The husband will receive 1/4, the daughters 2/3 between them and the brother will be ‘asabah and inherit the remaining.
3. When giving a gift one cannot stipulate a condition that conflicts with the nature of a gift transaction. The nature of a gift transaction is for the recipient to become the owner of the received gift and utilise it as they see fit. Restricting the use therefore, conflicts with the nature of the contract and thus such a condition will be void. The recipient will be entitled to use the gift as they see fit.
4. A will must be distributed according to the rules of shari’ah even if it conflicts with the wishes of the deceased.
5. If an individual misses a compulsory act of worship such as a salat, fast, paying their zakat, then it is compulsory upon them to carry out the duty before they pass away. They must perform the outstanding salat, fasts and pay any outstanding zakat.
If they were to pass away before performing these duties, then it will remain a duty upon them. In such a case there is an option to pay fidyah on behalf of the deceased for any acts of worship they have missed and were not able to make up before they passed away. The sadqat al-fitr amount will be due for each salat or fast that was missed. Fidyah cannot be given for unpaid zakat.
The payment of fidyah will not be obligatory upon the heirs unless the deceased instructed this in their will. Hence, if a person has outstanding acts of worship, then it is compulsory upon them to note this down in their will and bequest for it to be paid off from their estate in the event that they pass away before fulfilling them.
If the deceased leaves behind such a bequest, then the heirs will be obliged to spend up to 1/3 of the estate (after deducting burial costs and debts) in paying the fidyah for missed salats or fasts. Similarly, if the bequest included outstanding zakat payments then up to 1/3 will be spent in paying the zakat. The remaining 2/3 will be distributed to the heirs according to their rightful share of inheritance.
If no bequest was made, or 1/3 of the estate was not sufficient to cover all the outstanding duties then it will not be binding on the heirs to make the remaining payments, however, if they do of their own accord then it is hoped that insha Allah the duty will be lifted from the deceased.
There is one legal strategy (hilah) which can be utilised in the event where the deceased has not left sufficient wealth and that is to make some payments to a poor person and then have that person gift the money back. The returned amounts will then be donated again on behalf of the deceased to the same person. This process will be repeated until all the acts of worship have been paid off. For example, if the fidyah for one salat is £3 then a payment of £300 will cover 100 missed salats. If the recipient of the sum, then gifts back the amounts, they can be re-donated to cover another 100 salats. In this manner it is hoped that the duty of the deceased will be fulfilled, and the recipient of the sum will still receive the amount originally intended.
One must bear in mind that this is a last resort. Every person must make a firm resolution to carry out all outstanding acts of worship before passing away and must start carrying them out as quickly as possible to ensure their duties are fulfilled in the best possible manner before passing away.
الدر المختار وحاشية ابن عابدين (رد المحتار) (5/ 240)
هاهنا أصلان: أحدهما أن كل ما كان مبادلة مال بمال يفسد بالشرط الفاسد كالبيع وما لا فلا كالقرض، ثانيهما أن كل ما كان من التمليكات أو التقييدات كرجعة يبطل تعليقه بالشرط وإلا صح
قوله من التمليكات) كبيع وإجارة واستئجار وهبة وصدقة ونكاح وإقرار وإبراء كما في جامع الفصولين فهو أعم مما قبله
البحر الرائق شرح كنز الدقائق ومنحة الخالق وتكملة الطوري (6/ 208)
وَفِي الْبَزَّازِيَّةِ مِنْ الْبُيُوعِ وَتَعْلِيقُ الْهِبَةِ بِإِنْ بَاطِلٌ وَبِعَلَى أَنْ مُلَائِمًا كَهِبَتِهِ عَلَى أَنْ يُعَوِّضَهُ يَجُوزُ وَإِنْ مُخَالِفًا بَطَلَ الشَّرْطُ وَصَحَّتْ الْهِبَةُ
الدر المختار وحاشية ابن عابدين (رد المحتار) (5/ 688)
و) حكمها (أنها لا تبطل بالشروط الفاسدة) فهبة عبد على أن يعتقه تصح ويبطل الشرط
See Fatawa Darul Ulum Zakariyyah 5:578
Answered by:
Ifta Research Fellow
Checked & Approved by:
Mufti Abdul Rahman Mangera
Mufti Zubair Patel