Q: Estate of deceased father:
1. (Father- passed on in 1979) left one immovable property in his will currently valued at R1,495m.
2. The will made provision for his wife (passed on 2001) to have use of the property until the day she passed (usufruct) and left the 11 siblings as the owners of the property (bare dominium) – to either sell the property after the mother passed on and/or if the heirs agree to do so. (Is this clause permissible in Sharia especially in light of their now being a dispute regarding the sale of the property)?
3. 1 Brother and family lived in the house since 2000 to date as well as another two-sibling’s; a sister (unmarried) and brother (mentally retarded passed on in 2016).
4. Neither of the siblings living in the house has ever paid rent, but the sister who used to work maintained the house and the brother who resides in the house with his family has made extensions to the house to accommodate for him and his family.
Family dispute:
1. The two oldest living brothers currently want to sell the house of their deceased father and wind up his estate according to Sharia law of Inheritance.
2. The other 4 siblings are disputing the sale of the house. Reasons being
– Brother who has built on refuses to move with family.
– Unmarried sister refuses to live with any other brother & family.
– Youngest brother feels he needs to protect brother living in house.
– Other sister refuses to get involved and does not want to offend sister.
3. Did the mother have the right to grant consent to her son to build the extension without the necessary consent from the other siblings who were the true owners (bare dominium) of the property by way of inheritance?
Possible discussions of sorting matter out:
Brother residing in house wants to be compensated for the extension in addition to his share of inheritance? (Approval was not sought from all the heirs and no agreement to the extension, also he has never paid rent.)
Sister who resides in house wants to claim compensation for looking after mentally retarded brother and mother all the years hence wants her share to be increased accordingly? (Even though she claimed all the government subsidies of both).
The 4 siblings want the property to be sold to the brother’s daughter (who resides in the house with her father) at a below market value, and she can only afford to do so in the next two years. They also offered the two brothers wanting to wind up his estate their share of the inheritance and thus only settled the remaining heirs at a later stage (approx. 2 years), remaining heirs are widows and children of diseased brothers.
Can such an offer be made or accepted? Brothers wanting to wind up the estate are being treated ruthless, its affecting their health and they at a stage where they feel like giving up. Please advice accordingly.
A: The clause is wrong. Immediately after death, the estate must be winded and the heirs must be given their respective shares.
I suggest that they refer the situation to some experienced aalim living nearby and ask him for some direction. The best would be that all the heirs are agreeable to one righteous experienced aalim. To forcefully insist that one person will occupy the place is oppression, as this amounts to encroaching onto the rights of others. It becomes even more severe when he does not even pay a rental. Building on a premises does not make the property his in any way.
And Allah Ta’ala (الله تعالى) knows best.
Answered by:
Mufti Ebrahim Salejee (Isipingo Beach)