Fatwa ID: 08808

 

 

Answered by: Maulana Yusuf Badshah

 

Question:

 

My dad’s brother (Taya) and wife separated and divorced and his own property according to UK LAW was split 50:50, and his 3 children (2 male, 1 female) all married 2 of which don’t speak to him or associate with him at all. After the divorce he wrote a will stating that after his death he wants his property (the remaining 50%) to be passed on to his brother (my father) and if his brother is not available then to me (nephew). Both of his parents have passed away.

 

Please advise what is the Islamic ruling for this situation. Is his brother allowed to take all his property after his death (as that what he wrote in his will). If not how much can he keep, is it one third 1/3.

 

 

In the name of Allah, the Most Gracious, the Most Merciful.

 

 

Answer:

 

While it is permitted to bequeath up to a third of one’s wealth in a will to a non-inheritor, one cannot bequeath any of their inheritance in their will to an inheritor who is already prescribed a share. This means that the will only comes into effect if your father would otherwise not inherit, in which case he can only receive a maximum of one third of his brother’s total wealth. Your father’s inheritance will therefore depend on which of his brother’s relatives are still alive when he passes away, and the same applies to you as his nephew [1].

 

If the brother has a living father, grandfather, son or grandson when he passes away, then your father will not receive a share. In this case, the will means that he will inherit the value of the property which is less than or equal to one third of the brother’s total wealth at the time of his passing, provided this value does not exceed the 50% of the property mentioned in the will. His remaining wealth is to be distributed amongst the surviving relatives according to the shares prescribed by Islam. This includes his children with whom he is estranged but not his wife whom he has divorced [2].

 

Note that the wording of the will implies only the 50% of the property which he owns is being bequeathed. This means that if the brother’s total assets besides the property are less than the property’s full value, then your father will only inherit one third of his brother’s assets, while if his other assets exceed the full value of the house, then your father will inherit the 50% of the property which his brother owned and nothing more.

 

If the brother passes away leaving behind no father, grandfather, son or grandson, then your father will inherit the wealth that remains after each surviving relative has received their share, and anything bequeathed to him in the will is to be dismissed [3].

 

As for you, you will only inherit if your father has passed away, in which case the above will then apply to you.

While your father’s brother may seek to deprive his children who have cut ties with him from inheriting from him, the laws of inheritance in Islam do not allow this. His children shall receive their share regardless of his will.

 

Note that in the matter of inheritance, there are multiple caveats that can affect who will inherit, which can vary as circumstances change. One is therefore advised to have the situation properly reassessed by a qualified scholar at the time of your uncle’s passing to ensure the inheritance is indeed properly distributed.

 

 

References:

 

[1] Raddul Muhtar, vol. 6, pg. 649, Darul Fikr:

(وَشَرَائِطُهَا كَوْنُ الْمُوصِي أَهْلًا لِلتَّمْلِيكِ) فَلَمْ تَجُزْ مِنْ صَغِيرٍ وَمَجْنُونٍ وَمُكَاتَبٍ إلَّا إذَا أَضَافَ لِعِتْقِهِ كَمَا سَيَجِيءُ (وَعَدَمُ اسْتِغْرَاقِهِ بِالدَّيْنِ) لِتَقَدُّمِهِ عَلَى الْوَصِيَّةِ كَمَا سَيَجِيءُ (وَ) كَوْنُ (الْمُوصَى لَهُ حَيًّا وَقْتَهَا) تَحْقِيقًا أَوْ تَقْدِيرًا لِيَشْمَلَ الْحَمْلَ الْمُوصَى لَهُ فَافْهَمْهُ فَإِنَّ بِهِ يَسْقُطُ إيرَادُ الشُّرُنْبُلَالِيُّ (وَ) كَوْنُهُ (غَيْرَ وَارِثٍ) وَقْتَ الْمَوْتِ

 

Raddul Muhtar, vol. 6, pg. 649, Darul Fikr:

(قَوْلُهُ وَكَوْنُهُ غَيْرَ وَارِثٍ) أَيْ إنْ كَانَ ثَمَّةَ وَارِثٌ آخَرُ وَإِلَّا تَصِحُّ كَمَا لَوْ أَوْصَى أَحَدُ الزَّوْجَيْنِ لِلْآخَرِ وَلَا وَارِثَ غَيْرَهُ كَمَا سَيَجِيءُ (قَوْلُهُ وَقْتَ الْمَوْتِ) أَيْ لَا وَقْتَ الْوَصِيَّةِ حَتَّى لَوْ أَوْصَى لِأَخِيهِ وَهُوَ وَارِثٌ ثُمَّ وُلِدَ لَهُ ابْنٌ صَحَّتْ الْوَصِيَّةُ لِلْأَخِ وَلَوْ أَوْصَى لِأَخِيهِ وَلَهُ ابْنٌ ثُمَّ مَاتَ الِابْنُ قَبْلَ مَوْتِ الْمُوصِي بَطَلَتْ الْوَصِيَّةُ زَيْلَعِيٌّ

 

[2] Fatawa Hindiyyah, vol. 6, pg. 451, Darul Fikr:

فَأَقْرَبُ الْعَصَبَاتِ الِابْنُ ثُمَّ ابْنُ الِابْنِ وَإِنْ سَفَلَ ثُمَّ الْأَبُ ثُمَّ الْجَدُّ أَبُ الْأَبِ وَإِنْ عَلَا، ثُمَّ الْأَخُ لِأَبٍ وَأُمٍّ، ثُمَّ الْأَخُ لِأَبٍ ثُمَّ ابْنُ الْأَخِ لِأَبٍ وَأُمٍّ

 

Raddul Muhtar, vol. 6, pg. 762, Darul Fikr:

(وَيُسْتَحَقُّ الْإِرْثُ) وَلَوْ لِمُصْحَفٍ بِهِ يُفْتَى وَقِيلَ لَا يُورَثُ وَإِنَّمَا هُوَ لِلْقَارِئِ مِنْ وَلَدَيْهِ صَيْرَفِيَّةٌ بِأَحَدِ ثَلَاثَةٍ (بِرَحِمٍ وَنِكَاحٍ) صَحِيحٍ فَلَا تَوَارُثَ بِفَاسِدٍ وَلَا بَاطِلٍ إجْمَاعًا

 

[3] Fatawa Hindiyyah, vol. 6, pg. 451, Darul Fikr:

(الْبَابُ الثَّالِثُ فِي الْعَصَبَاتِ) وَهُمْ كُلُّ مَنْ لَيْسَ لَهُ سَهْمٌ مُقَدَّرٌ وَيَأْخُذُ مَا بَقِيَ مِنْ سِهَامِ ذَوِي الْفُرُوضِ

 

 

And only Allah s.w.t knows best.

Written by Maulana Yusuf Badshah

Checked and approved by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham