Q: My grandmother (fathers mother) passed away two weeks ago at age 86. May Allah grant her Jannatul Firdous. Aameen
With regards to the inheritance, she had made verbal bequests and had not made a written will. During her lifetime she had gifted her daughter her “share” of what was due i.e. money and jewellery and other items. She had continually mentioned to all the family members that she had given those items and the remainder of her possessions will stay in the house and is for my father. (She was a widow and lived with my parents). Subsequent to the death, my aunt is now wanting to claim other items. Please advise how we should handle the situation. Should we now distribute all the items the shariah way. They are just 2 siblings, one brother and one sister.
A: The law of shariah in regard to how the wealth of the deceased should be disposed is as follows:
1. Firstly his wealth will be used to pay for his burial expenses (i.e. purchasing his kafan, transporting the body to the graveyard and purchasing the grave).
2. Secondly, his debts will be settled.
3. Thirdly, if he made a bequest for any non heir, the bequest will be fulfilled from one third of the wealth that remains after settling the debts.
4. Fourthly, whatever wealth remains thereafter, it will be distributed among the heirs, according to the stipulated shares of inheritance.
Hence, whatever wealth your grandmother left behind in her estate, will have to be distributed between your father and your aunt according to the stipulated shares of inheritance.
The condition which your grandmother made that your aunt will not receive any share of the inheritance as your grandmother had given her some wealth during her lifetime, is a condition that is totally against the laws of shariah and is thus invalid. Whatever your grandmother gave your aunt during her lifetime will be regarded as a gift and will not prevent her from receiving her stipulated share of the inheritance.
Note: The abovementioned ruling is in the case where your grandmother gifted these things to your aunt while she was well. If she gifted the items to your aunt while she was in maradhul maut (her final sickness after which she did not recover), the gifting will not be regarded valid and the gifted items will have to be returned to the estate and be distributed among the heirs according to the stipulated shares of inheritance.
And Allah Ta’ala (الله تعالى) knows best.
Mufti Zakaria Makada
Checked & Approved:
Mufti Ebrahim Salejee (Isipingo Beach)