A daughter purchases a house but does not pay the mortgage off. Is she entitled to a share of the house?
In the name of Allah, the most Beneficent, the most Merciful.
There are two possible situations to your question.
The first possibility is that you brought the house with the intention to give it to your mother. In this case the purchasing of the house will amount to an inter-vivos gift. You will not be entitled to a share of the house. Similarly, your younger sisters and brother will also not be entitled to the house even though they may have been paying the mortgage of the house.
As I mentioned above, the purchasing of the house with the intention to give it to the mother will amount to a gift and to ask for a gift back is impermissible in the following seven situations:
- From relatives.
- Husband and wife relationship.
- To take or accept a reward after accepting the gift.
- The gift has left the ownership of the person whom the gift was given to.
- If the giver or the person the gift was given to passed away.
- If the gift has perished.
- If the gift has increased in nature, such as a piece of cloth and the person has dyed it. (Al Ikhtiyar p.51 v.3)
The second situation is that you brought the house without making an intention to give it to your mother. In this situation you will be entitled to a percentage of the house in accordance to your investment. For example, if you invested £10,000 for the purchase of a house worth £30, 000 then you will be entitled to one-third of the house. The same criterion will also apply for your younger sisters and brother in terms of their respective shares in the house.
Finally, with regards to your mother making a Will, there are again two situations.
If your mother is planning to make a Will in order for the children to receive a share of the house after her death, then this will be considered invalid.
Making a Will does not mean one is allowed to distribute his wealth during his life. He should stipulate in the Will that “upon my death, my executors will distribute my wealth according to the Shariah” and this will be conducted by a Muslim Scholar or Mufti.
During ones lifetime one cannot distribute the portion of the inheritance for one is unaware who will be alive at the time of ones death. Even the death of one person changes what each heir would have received.
The following should be stipulated in a Will:
- The payment of funeral and burial expenses
- Payment of all debts owed to other people
- Payment of any bequest (wasiyah) including unpaid Zakat or fidyah for missing salah or fasting. However the condition is that it is only executed from one third of ones wealth.
- The distribution of the remaining wealth among the heirs according to the laws of the Shariah in consultation with a Muslim scholar or Mufti.
- Signing of the document by both the will maker and the relevant witnesses.
However, if your mother is making a Will so that she can distribute the shares of the house to her children in her lifetime, then if we go according to the first synopsis, in terms of you giving the house to her as a gift then it will be obligatory for your mother to distribute the house equally between all her sons and daughters. No one will be allowed a bigger share than the other siblings.
There are four categories of giving gifts to one’s children.
- Where the parents intend to harm and avoid giving the rights to the children. This is Makruh Tahrimi.
- Where the parents do not intend to harm the children or avoid giving their rights, however, there is no valid reason of preference of one child over another, this will be Makruh Tanzihi.
- If one child is preferred due to him being in the path of Allah, such as studying sacred knowledge, then it is desirable to prefer one child over the other.
- If a child is deprived from receiving extra wealth due to him being irreligious and a sinner then it is mustuhub to deprive him. (Bahrur Raaiq p.288 v.7 & Ahsanul Fatawa p.256 v.7)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham.