Distribution of estate

Category: 

Inheritance

According to Madhhab: 

Hanafi

Reference: 

1440-526

Question: 

We are a family
consisting of six siblings, two brothers and three sisters;

Masala 1: Sister A altered marhoom dad's Islamic will by replacing it with a
secular will with all its proceeds to go to his spouse whom he had divorced
previously by uttering three talaqs; Sister A then sold the property and
presumably kept the proceeds for herself (a few million rands); All marhoom
dad's cash proceeds amounting to several hundred thousand rands were
transferred to his spouse deceptively, these cash funds were then distributed
amongst the four sisters, excluding the two sons; thus, the two sons did not
receive anything from marhoom father's estate.



Masala 2: The sibling's mother owned a property and an Islamic will in place.

Three of the four sisters then conspired and convinced the mother to transfer
her property to these three sisters, thus, bypassing it from the Islamic will.
The mother passed away recently, thus, this property worth about two million
rands was now owned by the three sisters and thus, one sister and the two
brothers were excluded from receiving anything from her asserts.



Mufti Sahib, it is my understanding that all these sisters would like to
rectify the injustices caused by their actions in this world rather then the
akhirah. The brothers would like to be given what they were deprived of in the
first instant before any forgiveness can be done.



Please advise the way forward.


Answer: 

1. It is impermissible for the heirs to alter and doctor the Islamic Will. For this they will be sinful in Allah’s Court and will remain sinful until they return the money to the deserving heirs for its distribution according to Shariah. The correct Shariah distribution will take place as follows:-

After discharging the deceased’s burial expenses, debts (if any), and execution of the Wasiyyah/bequest from 1/3 of the estate, the estate will be apportioned into 8 shares to devolve upon the heirs as follows:

(NOTE: In the event where the divorced spouse passed away or her Iddat (subsequent to the divorces) was over, she will not inherit anything from your father’s estate. That would leave the six siblings; 2 sons and 4 daughters as the sole inheritors).

Son 1 - 2 shares  - 25%

Son 2 - 2 shares  - 25%

Daughter 1 - 1 share  - 12.5%

Daughter 2 - 1 share - 12.5%

Daughter 3 - 1 share  - 12.5%

Daughter 4 - 1 share  - 12.5%

Total - 8 shares  - 100% 

However, if the wife’s Iddat of divorce was not over as yet when her husband (your father) passed away, in this event she will inherit, and the estate will be distributed into 64 portions as follows:

Divorced Wife - 8 shares  - 12.5%

Son 1 - 14 shares  - 21.875%

Son 2 - 14 shares  - 21.875%

Daughter 1 - shares  - 10.9375%

Daughter 2 - shares  - 10.9375%

Daughter 3 - shares  - 10.9375%

Daughter 4 - shares  - 10.9375%

Total - 64 shares  - 100%

2. In Islam, one can use and utilise his/her wealth as he/she desires while he/she is still healthy and alive; therefore, one can make someone the owner of his properties and belongings in his lifetime (by way of selling or gifting it to them) before he/she departs from this temporary world to the real abode. However, after his/her demise, his/her wealth is automatically transferred to the heirs to be distributed amongst them according to the rules of inheritance set down by Shari’ah. Yes the deceased does have the right (after the payment of burial expenses and debts owing by him/her) to bequeath up to 1/3 of his estate to a charity or to any person/s who do not automatically qualify as heirs in his estate. He cannot bequeath any portion of his/her estate to a person who already qualifies as an heir in terms of Shari’ah.

In the enquired case, if these three sisters took possession of the property after it was properly gifted to them by the mother (while she was sane and healthy,), they will become the genuine owners of the property. However, if they did not take possession of the property, it will be considered as part of her estate, which will be distributed amongst all the siblings (and not only the three sisters) according to Shariah; the share allocation of which then will be as follows:- 

Son 1 - shares  - 25%

Son 2 - shares  - 25%

Daughter 1 - share  - 12.5%

Daughter 2 - share  - 12.5%

Daughter 3 - share  - 12.5%

Daughter 4 - share  - 12.5%

Total shares  - 100%

Additionally, merely transferring the property on someone’s name does not make him/her the owner of the property if he/she has not taken the property in his/her possession.

Furthermore, the mother would be sinful if she gave preference to the three daughters to cause harm to other children by depriving them of the wealth/property; however, if causing harm was not intended, she will be allowed to grant one child more than the others for valid reasons such as one being more needy, being unable to earn etc...

NOTE: The above distributions are based on the fact that there are no other heirs beside the ones mentioned above. However, if there are any other heirs, the estate will be distributed differently.

AND ALLAH TA'AALA ALONE IN HIS INFINITE KNOWLEDGE KNOWS BEST

ANSWERED BY: MOHSIN KHAN 

CHECKED AND APPROVED BY: Mufti Muhammed Saeed Motara Saheb D.B. 

Islamic Date: ٥ ذو القعدة ١٤٤٠  English Date: 08 July 2019

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